“As he has consented to do, Defendant shall provide formal notice whether he intends to assert an advice-of-counsel defense by January 15, 2024,” Chutkan wrote. "If Defendant does provide affirmative notice of that intent, he must also provide the required discovery to the government at that time: ‘any communications or evidence [Defendant] intend[s] to use to establish the defense,’ and ‘otherwise-privileged communications that [Defendant does] not intend to use at trial, but that are relevant to proving or undermining the advice-of-counsel defense . . . in their entirety.’
If he does assert this defense, would it allow the Gov to ask Trump’s lawyers about all the communications (ie, not just documents) related to the advice they gave?
If so, I could see that working both ways. They either didn’t give this advice which is bad for Trump’s defense. Or, they did (or at least they will say they did) and would that be a successful defense to the crime?
Can Trump pick and choose what attorney’s privilege he waives? I imagine he got pretty shitty advice from his shitty lawyers and went with it. But also, got some good advice that he ignored. If you’re Trump, you just disclose the names/advice of all the bad advice attorneys. It’s not ethical, but I’m sure that’s how it would go down if Trump actually uses this defense…possibly true bad advice he relied on, but very manufactured to only include that bad advice/attorneys. How does the Gov break the privilege to find the good advice/attorneys?
Am I right in assuming that (the vast majority or) all of the good advice came from the White House Counsel who didn’t, and doesn’t, represent Donald J. Trump, as an individual, and would therefore not be bound by A-C privilege in a criminal matter?
Given the judge’s ruling, that seems unlikely, and communications means everything, not just documents:
any communications or evidence [Defendant] intend[s] to use to establish the defense,’ and ‘otherwise-privileged communications that [Defendant does] not intend to use at trial, but that are relevant to proving or undermining the advice-of-counsel defense . . . in their entirety.’
ETA: That’s why when witnesses take the Fifth, normally they advance it for even the most innocuous-seeming questions, because any answer that even marginally touches on what’s at issue can be argued to waive attorney-client privilege entirely on that issue.
ETA2: Sometimes in depositions when attorney-client is raised, counsel for the two sides will agree that an answer to that particular question will not be construed as waiving the privilege, but both sides have to accept that narrow exemption.
Even if Trump is able to cherry-pick Lawyer A Who Is Very Smart For Agreeing With My Position and ignores Lawyer B Who Annoyingly Argues With And Opposes Me, there is a nonzero chance that the documents associated with Lawyer A will include some references to why the advice received from Lawyer B was wrong, and the jig is up.
Probably right in assuming that, but I don’t know. I’m aware of some WH attorneys who gave good advice. I’m wondering if it matters, though; or if there is an Executive privilege etc (I was trying to keep it simple, but I suppose it’s not). I’m not familiar with the advice of counsel affirmative defense, so I’m happy to be educated.
But if the defense is…an attorney gave me bad legal advice, and I relied on it and did a criminal thing thinking it wasn’t criminal because of the bad advice…Then Trump would need to say which attorney(s) gave the advice, what the advice was, and discovery should be a free for all like any other witness. And I imagine the prosecution could find their own witnesses to rebut the defense, and those witnesses might be Gov lawyers who gave Trump good advice.
I suppose if the Prosecutors knew of a White House attorney that gave good advice, any privilege would be held by the Executive (the entity, not the individual). That’s currently Biden. Right, or no?
Perhaps it’s been brought up elsewhere, but I’m unsure which Trump legal thread to put it in so I guess I’ll put it here and some mod may move it if they wish.
I saw an article a couple days ago saying a possible delay strategy Trump could employ even for a case with a judge who seems determined to stay on track for the set trial date, is to wait until the last minute and fire all his lawyers, thereby necessitating the courts to accommodate him and provide the new attorneys additional months (?) to get up to speed.
Doesn’t everyone retain the right to fire their council? How could the courts deal with this situation?
It depends. Assuming the lawyers did nothing illegal or unethical, and the sole reason for firing them is to delay the trial, then I would guess the Judge would just go ahead with the trial. Trump would either have no lawyers (pro se) or possibly if close enough to trial the Judge might not allow him to “fire”** the attorneys or provide him with Court appointed attorneys.
If there are other plausible non-illegal/unethical reasons to fire them and not just to delay the trial (e.g., we disagree over trial strategy), it’s still no guarantee and it would depend on the Judge. Anytime you want to move a trial date you have to file a Motion for Continuance, and in that motion you have to explain why the trial date should be moved. Trump would have to explain why he fired his lawyers, why he fired them so close to trial, why he needs more time to find new ones, etc, etc. Basically, explain why he didn’t fire them earlier and waited until the eve of trial. If Trump can only provide BS/manufactured reasons, the Judge would be unlikely to change the trial date and Trump would go pro se, same lawyers, different paid lawyers, or court-appointed lawyers.
** A point to keep in mind. There is a difference between firing your lawyer, and the lawyer being an attorney of record on the case with the Court (ie, the attorney(s) the Court recognizes as being your attorney(s) for this matter). Just because you fire your lawyer doesn’t mean they stop being the attorney of record on the case. To be removed as attorney of record usually requires informing the Court and getting the Judge’s approval (certainly required if you’re not immediately substituting in a new lawyer; meaning, just removing your attorneys but not replacing with anyone).
I don’t want this to get circular, but it depends on the reasons. It would be between no time and a reasonable amount of time, depending on the reasons.
If Trump fired his previous lawyers to delay trial and, after that, hired new lawyers to replace them. I wouldn’t give them any time. There’s no valid reason. From the lawyers perspective, the lawyers didn’t have to agree to represent him nor agree to jumping in at that moment.
If there are real reasons Trump fired his lawyers, and it was just coincidentally at the eve of trial, then it just depends on the Judge whether trial should be continued and new lawyers given time to be brought up to speed. You would get plenty of time if there were ethical/illegal reasons and those reasons were discovered on the eve of trial. If the reasons were real non-manufactured but not illegal/unethical, then some reasonable amount of time (it would then depend on the Judge whether that’s two weeks or two months).
Maybe time for someone else to weigh in, but I don’t see this as a big deal.
Edit: I just noticed the quote included both paid and court-appointed. I missed that and I only answered re: paid. My guess is Court-appointed might change the amount of time, but not the rest of what I said re: reasons.
things are not going well with team trump. team trump has used 80 minutes in their argument.
Circuit Judge Patricia Millett told Donald Trump’s attorney that the gag order imposed on him does not represent a broad threat against the former president’s First Amendment rights.
“First of all, we’re not shutting down everyone who speaks,” she said. “This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon.”
the government is up now. here is a snippet:
“The district court correctly found that the defendant’s well-established practice of using his public platform to target his adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings,” VanDevender said.