# A factual question about Trump's potential "Advice of counsel" defense **URL:** \ **Category:** Factual Questions\ **Created:** [August 4, 2023, 1:47pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043 "2023-08-04T13:47:50Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![ParallelLines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/parallellines/32/3575_2.png) [@ParallelLines](https://boards.straightdope.com/u/ParallelLines)\ **Post date:** [August 6, 2023, 6:35am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/21 "2023-08-06T06:35:53Z")
> [@Princhester](#): > > But what if someone overcharged you, then (say) some of their property came legally into your hands and your lawyer advised you it was legal to keep it in recompense? Although a more accurate comparison would be that 49 of your lawyers said “hello no” that’s not legal and _one_ said, “well, it might be a little illegal, but you -maybe- could keep it”. At least, based on all information publicly released to date. In other words, Trump listened to what he wanted to hear, and given a chance, he would, true to form, be happy to throw someone _else_ under a bus for catering to his desires. But, yes, I do see this as the central point of the OP’s defense, which (IMHO) why the majority of the DOJ charges tend to avoid looking at intent and instead focus on actions. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [August 6, 2023, 7:19am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/22 "2023-08-06T07:19:54Z")
> [@Princhester](#): > > To be clear I’m not for a moment suggesting Trump received any such legal advice, or at least none that he believed in good faith. But that may be his argument. ⁢ Doing that, however, apparently waives attorney client privilege, and would of course implicate said lawyers. They’d have their own backsides to protect. > [@ParallelLines](#): > > But, yes, I do see this as the central point of the OP’s defense, which (IMHO) why the majority of the DOJ charges tend to avoid looking at intent and instead focus on actions. They also propose evidence that Trump did not in fact listen to counsel when they told him his actions were illegal. ---
**Author:** ![ParallelLines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/parallellines/32/3575_2.png) [@ParallelLines](https://boards.straightdope.com/u/ParallelLines)\ **Post date:** [August 6, 2023, 4:52pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/23 "2023-08-06T16:52:26Z")
Yup @BigT - that’s why I amended Princhester’s example to say that 49 lawyers (including the ones that actually, you know, worked in/for the federal government) said “hell no” but Trump went with the singleton outlier that said “well maybe!”. Numbers were picked for effect, but I suspect the actual ratio was reasonably close. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 6, 2023, 6:54pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/24 "2023-08-06T18:54:00Z")
> [@Cheesesteak](#): > > If the question is “what did Adam say in the meeting?” then I think this testimony is not hearsay, because Bob is a direct witness to what Adam said in the meeting. > > If the question is “who shot JR?” and Bob’s testimony is “Adam said that Charlie shot JR”, that’s clearly hearsay. Yes, that’s my understanding of the “no hearsay” rule. You cannot implicate the defendant based on second-hand information. A more interesting question is what if the participant, let’s say a Jaime(R) quotes what a remote (defentant) said, where Kevin said it to her. Something along the likes of “Kevin told me that Don said ‘Well, Kevin, I guess these people are more upset about the election than you are’”? That does sound like inadmissible second-hand quote. But there’s no reason for our hypothetical Kevin(R) not to testify to it himself. There is no reason for him to plead the fifth in that instance or several related incidents, so refusing to testify is contempt? Can the second-hand witness then testify to corroborate that is what the witness said they heard? It seems to me that’s along the same lines of a witness saying that a sexual assualt victim told them the next day what had happened to corroborate it is not a much-later-made-up claim. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 24, 2023, 1:48am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/25 "2023-09-24T01:48:50Z")
If hearsay, then it’s hearsay for Adam to testify to what Adam said as well. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Unless the person who said it is a party or it is subject to another exception, it’s inadmissible. Fun story: I represented an employer at trial versus an unrepresented employee. The employee kept trying to testify that his doctor told him not to work. I objected that this was hearsay. He rephrased the statement a few times but the judge continued to sustain my objection. Eventually I asked the judge if I could explain the objection and she agreed, so I explained to the employee that he couldn’t testify to what someone else told him. I told him he would have to have called the doctor as a witness and have him testify about whether he was medically contraindicated from working. He thought about it for a minute, called his wife as his next witness and proceeded to ask her whether she heard the doctor tell him he should stay out of work. (It was still hearsay and I won the case without having to put on any evidence.) ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 24, 2023, 5:12am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/26 "2023-09-24T05:12:59Z")
This thread is a nice companion to my thread about the admissibility of tv interviews. In a recent interview defendant Trump stated it was all his idea. If he claims in court that he was acting on advice of counsel there is video of him saying otherwise. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [October 1, 2023, 1:13am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/27 "2023-10-01T01:13:41Z")
Was the employee in the right? Would he have had to pay his doctor to testify? ---
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [October 1, 2023, 8:57am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/28 "2023-10-01T08:57:15Z")
And could the doctor submit his evidence in writing instead of appearing in person? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 1, 2023, 9:57pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/29 "2023-10-01T21:57:23Z")
Yes to #1. The doctor is an expert witness and is entitled to a witness fee. No to #2. In that specific case, the doctor’s opinions could have been admitted via deposition instead to having him appear live for trial, but an affidavit or something would not have been admissible. And for the most part, trial testimony has to be given in person so the factfinder can observe the witness and evaluate credibility. This was an administrative hearing and expert testimony was admissible by deposition but that is not there general rule. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [October 1, 2023, 11:36pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/30 "2023-10-01T23:36:00Z")
Can the Doctor be forced to testify? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [October 1, 2023, 11:50pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/31 "2023-10-01T23:50:07Z")
> [@carnivorousplant](#): > > Can the Doctor be forced to testify ? Sure, they can be subpoenaed. They generally don’t like it and you’re not likely to get useful testimony from a pissed off doctor. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [October 1, 2023, 11:51pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/32 "2023-10-01T23:51:22Z")
So the defendant was screwed. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [October 1, 2023, 11:53pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/33 "2023-10-01T23:53:31Z")
You can work with the doctor to get him to come to court. Much better than serving a subpoena. Also, many courts these days allow testimony via zoom, so the doctor might not object so much (probably take only 10 minutes out of his day) Also, a deposition can be used at trial by agreement or if the witness is unavailable. In my state, health care provider depositions can be used even absent unavailability. So, there are ways. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [October 2, 2023, 12:58am UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/34 "2023-10-02T00:58:57Z")
Yeah. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [October 2, 2023, 12:03pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/35 "2023-10-02T12:03:44Z")
> [@Procrustus](#): > > You can work with the doctor to get him to come to court. Much better than serving a subpoena. I was subpoenaed to testify in a case brought by the plaintiff (an attorney) against the defendant (a friend of mine). I was a witness, but not an expert, so there was never talk of pay. I knew all the details of the situation and the plaintiff was out of her mind, there was no case. When the plaintiff tried to contact me to discuss her case, I refused to speak with her. It went first before an arbitration panel consisting of three attorneys who found for the defendant. I was pissed off about taking a day off of work and paying for parking in Pittsburgh. She then bumped it up a notch and took the case to trial. Again, I was subpoenaed. I was really unhappy about the situation. The judge wasn’t happy about my attitude especially when the plaintiff asked to treat me as a hostile witness. The judge pointed out that she had called me, then he addressed me asking what was going on. I calmly explained that this was the second day of work I’d missed, traveled to Pittsburgh, paid for parking, etc, and that the plaintiff was delusional. The judge was pretty cool, asking only that I answer the questions. So I did, but I purposely used terms the plaintiff didn’t understand. Once again, she lost. ---
**Author:** ![Shoeless](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shoeless/32/7099_2.png) [@Shoeless](https://boards.straightdope.com/u/Shoeless)\ **Post date:** [October 2, 2023, 4:26pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/36 "2023-10-02T16:26:19Z")
> [@Procrustus](#): > > Also, many courts these days allow testimony via zoom, so the doctor might not object so much (probably take only 10 minutes out of his day) Just be sure to turn off the cat filter first. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [October 2, 2023, 10:44pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/37 "2023-10-02T22:44:04Z")
And no masturbating until you leave the room! ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 2, 2023, 10:51pm UTC](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043/38 "2023-10-02T22:51:59Z")
or the Zoom! [Previous page](https://boards.straightdope.com/t/a-factual-question-about-trumps-potential-advice-of-counsel-defense/988043.md?page=1)