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Donald Trump outside the Court Room, flanked by his lawyers and secret service, after his day of testifying rants to the Press about the unfairness of the trial, judge, and AG, as he leaves the building in New York. (Photo by Catherine Nance / SOPA Images/Sipa USA)(Sipa via AP Images)
As the federal judge presiding over Donald Trump‘s election subversion case in Washington, D.C., keeps a grip on the former president’s March 4, 2024 trial date, on Wednesday, she carved out another important deadline for the defense.
In a 3-page ruling, U.S. District Judge Tanya Chutkan ordered Trump to finally declare whether he intends to use an “advice of counsel” defense at his criminal trial in the nation’s capital no later than Jan. 15, 2024.
Prosecutors asked the judge in October to set a Dec. 18 deadline, sharing concerns that Trump was waiting “until the eve of trial” to formally declare his strategy. Such a ploy could throw proceedings substantially off schedule, since declaring it triggers a time-consuming sequence of events, they said.
By invoking an advice of counsel defense, Trump would automatically waive attorney-client privilege for all of the communications concerning his defense. That means the government would then be entitled to additional discovery.
Things wouldn’t end there, either.
By gaining access to new discovery, it could also mean prosecutors would need to extend their investigation time. And that could mean new litigation, new briefings and more.
As part of his defense, Trump would essentially argue that any decisions he took tied to the allegations underpinning his indictment were formed with his lawyer’s advice and relied on in good faith.
In unwinding reasons for their dubiousness around the timing of his anticipated defense strategy, prosecutors noted how defense lawyers had already spent significant amounts of time discussing the advice of counsel strategy in the press after Trump was indicted in August.
Trump’s lawyers appeared on Fox and CNN saying the former president relied on advice from John Eastman, an attorney who now faces nine criminal charges in an election conspiracy case unfolding in Georgia that has also named Trump as defendant.
When defense attorney John Lauro was interviewed by NBC’s Meet the Press on Aug. 6, he explicitly stated that Trump was being indicted for “following legal advice from an esteemed legal scholar, John Eastman.”
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Trump has defended himself against the allegations already with his lawyers declaring that he relied on a memo by Eastman that theorized, falsely, that then-Vice President Mike Pence had the authority to stop the electoral certification of President Joe Biden’s win during the congressional session on Jan. 6.
Under the Constitution, Pence’s role was defined as purely ministerial.
As Trump’s lawyers made these comments to the press, that in turn prompted prosecutors at the special counsel’s office to immediately begin producing discovery and relevant search warrants in that vein, they said.
On principle, prosecutors also sharply reminded Chutkan last month that Eastman was the very “same attorney [who] asserted an attorney-client privilege with the defendant and his campaign to shield material from Congress.”
While acknowledging that some courts have historically refrained from requiring notice for defense strategy because it could force a defendant to unfairly reveal their hand, with Trump, his lawyers had already broadcast that intent to the world, prosecutors argued.
In her ruling Wednesday, Chutkan underlined that there are no local or federal criminal rules that require advance notice for the advice of counsel defense.
“But,” she wrote, “because waiting until trial to invoke the defense — and comply with the disclosure obligations it triggers — could cause disruption and delay, some district courts have concluded that they nonetheless have inherent authority to order defendants to provide advance notice if they intend [to] assert the defense.”
Trump faces four criminal charges in Washington, D.C., tied to Jan. 6, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against civil rights. He has pleaded not guilty to all of the charges.
For now, the criminal trial in Washington, D.C., remains on track for March 4, 2024.
Attorneys for Trump did not immediately respond to a request for comment Wednesday.
