Trump's lawyer (Lauro) also floated the advice of counsel defense . . . The advice of counsel defense strikes me as being somewhat more likely to get traction in court, but I'm skeptical that this would be successful. For one thing, it would more than likely waive attorney-client privilege . . .
If all of the communications between Trump and Eastman were to be entered as evidence, I'm willing to bet it would include statements by Eastman to the effect that his legal theory was weak, untested, etc. which would undermine Trump's defense.
The prosecutor just filed a motion asking the court to require Trump to state whether or not he will be relying on the advice of counsel defense. The motion referenced the statements by Lauro mentioned in my prior post.
Basically, the prosecutor wants access to all of the waived attorney-client privileged material well before the trial so they can scour it for incriminating statements. As I mentioned in my prior post, I'm willing to bet that waving A-C privilege would reveal incriminating evidence.
Thus, I'm guessing that the advice of counsel defense was just a TV talking point, and Trump will not assert it in court.
>>>Both Mr. Trump and his current team of lawyers have “repeatedly and publicly announced” that they were going to use such arguments as “a central component of his defense,” prosecutors told Judge Chutkan in their filing. They said they wanted a formal order forcing Mr. Trump to tell them his plans by mid-December “to prevent disruption of the pretrial schedule and delay of the trial.”
The early notification could also give prosecutors a tactical edge in the case.
Defendants who pursue advice of counsel arguments waive the shield of attorney-client privilege that would normally protect their dealings with their lawyers. And, as prosecutors reminded Judge Chutkan, if Mr. Trump heads in this direction, he would have to give them not only all of the “communications or evidence” concerning the lawyers he plans to use as part of his defense, but also any “otherwise-privileged communications” that might be used to undermine his claims. . . .
The prosecutors pointed out that three days after Mr. Trump was arraigned in the case, one of his lawyers, John F. Lauro, made the rounds of the Sunday TV news shows, describing how Mr. Trump had been charged for “following legal advice” from Mr. Eastman, whom he described as “an esteemed [ha ha ha] scholar.” <<< (emphasis and snide comments added)
The special counsel asked a judge to require the former president to disclose whether he would blame poor legal advice for his attempts to overturn his 2020 election loss.
www.nytimes.com
As noted in the NYT article, it's not entirely clear that Trump could successfully assert an advice of counsel defense in this case. As noted by Bill Barr previously, one of the main problems for Trump is that he didn't rely on the advice of lawyers with experience in this area, but rather sought out lawyers who told him the fairy tales he wanted to hear:
>>>Barr was also asked about whether the “advice of counsel” defense might work, and he built upon Short’s point.
“I don’t think that dog is going to hunt,” Barr
said on CNN.
“He wouldn’t listen to all the lawyers in the [Justice] Department who — in various departments or the White House that had those responsibilities, or his campaign,” Barr said. “
He would search for a lawyer who would give him the advice he wanted.”<<<
The judge's response to the motion concerning the advice of counsel defense might (emphasis on "might") provide some insight into the judge's view of the intent requirement in this case.
Judges do not always allow advice of counsel instructions to go to a jury.
>>>[W]here there is no requirement that the defendant intended to violate the statute criminalizing an offense, the advice of counsel instruction is not warranted.
See United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992). It is presumed that “every citizen knows the law,”
Bryan v. United States, 524 U.S. 184, 193 (1988); a lawyer cannot waive a magic wand and by his or her say-so relieve a defendant from criminal liability.
See United States v. Ansaldi, 372 F.3d 118, 128 (2d Cir. 2004).<<<
A U.S. district court held that an individual could not present an advice of counsel defense to extortion, money laundering and tax evasion charges from his proposed
www.taxnotes.com
