Legal experts: New Jack Smith filing blows a big hole in Trump's election interference defense

Smith's latest move may force Trump to waive attorney-client privilege

By Areeba Shah

Staff Writer

Published October 11, 2023 3:40PM (EDT)

Former President of the United States Donald J. Trump appears in the hallway of the courthouse to speak to the press on day three of the civil fraud trial in Manhattan, New York, United States on October 4, 2023. (Kyle Mazza/Anadolu Agency via Getty Images)
Former President of the United States Donald J. Trump appears in the hallway of the courthouse to speak to the press on day three of the civil fraud trial in Manhattan, New York, United States on October 4, 2023. (Kyle Mazza/Anadolu Agency via Getty Images)

Federal prosecutors requested that a judge compel former President Donald Trump to disclose, several months before his trial for alleged attempts to overturn the 2020 election, whether he plans to mount a defense centered on blaming his lawyers for giving him poor legal advice.

The prosecutors filed a motion to Judge Tanya Chutkan to direct Trump to inform them by Dec. 18 if he plans to employ the “advice of counsel defense” – a strategy which involves blaming his former legal team for providing poor advice, The New York Times reported

“In the time since the grand jury returned the indictment against the defendant on August 1, 2023, the defendant and his counsel have repeatedly and publicly announced that he intends to assert the advice of counsel as a central component of his defense at trial,” prosecutors wrote in their filing. 

The formal order would force Trump to tell them his plans by mid-December thereby preventing any “disruption of the pretrial schedule and delay of the trial.”

Early disclosure could also provide prosecutors with a strategic advantage. If Trump opts for the advice of counsel defense, he would waive his attorney-client privilege, requiring him to share all “communications or evidence” related to his defense team, including potentially privileged information that could weaken his position.

“Knowing this will enable the prosecutors to prepare to counter that defense through witnesses and arguments showing the weakness of that defense, and indeed, that such defense is completely untenable given Trump’s statements and actions that show he himself made all the critical decisions relating to subverting the 2020 election results,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

The prosecutors have proof that Trump’s lawyers, especially White House counsel Pat Cipollone, gave him advice which he disregarded, he explained.

“By raising such a defense, Trump will automatically forfeit any reliance on the attorney-client privilege, thereby freeing lawyers and other persons to testify about conversations with Trump,” Gershman said. 

But it’s “questionable” whether Trump could even assert the advice of counsel defense unless he testified, Stephen Gillers, a professor of legal ethics at New York University School of Law, told Salon.

“The defense depends on the claim that lawyers assured Trump that his contract was lawful, so that even if the lawyers were wrong, Trump lacked criminal intent because he relied on the advice,” Gillers said. “But I don’t see how Trump can create that defense, unless he testifies to his reliance on the advice of counsel, and we doubt very much that Trump will ever testify in any of his criminal cases.”

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Lawyers have played a central role in the election interference case since prosecutors initiated grand jury subpoenas in spring of 2022, The Times reported. These subpoenas primarily targeted lawyers like John Eastman and Kenneth Chesebro, who joined Trump's inner circle during the election and played a pivotal role in guiding him on the "fake elector" scheme, that declared him the winner in key swing states that had actually been won by his opponent, Joe Biden. 

The subpoenas also sought information about other lawyers, including Jenna Ellis and Rudy Giuliani, who were involved in advising Trump on the false elector plan and also promoting baseless claims of widespread election fraud.

“Conceivably, the judge may allow lawyers who allegedly gave Trump advice that his conduct was lawful would be sufficient to create the defense, if believed, even without Trump’s testimony,” Gillers said. “But I doubt it. Trump will have to say that he relied on the advice of counsel in order to create the defense and to get a jury instruction on it.”

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Trump could also use this strategy to his advantage by claiming that his lawyers told him that it was “perfectly legal,” to commit these acts, former Assistant U.S. Attorney William "Widge" Devaney told Salon.

In his defense, the former president could claim that he “didn't have the state of mind to commit a crime” and his lawyers instructed him that it was fine, Devaney said. 

But the bottom line here is that the prosecutors will have “significant investigation demands” since so many documents now claimed as privileged will then become available for them to review, Gillers pointed out. 

“The timing of all of this is still critical,” Devaney said. “Trump's main strategy here is ‘can I delay this long enough, get elected president again and stop the cases.’ So you’re going to see every effort to delay, drag the trial out. I wouldn't be surprised if they have a giant witness list, giant exhibit list.”

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Donald Trump Furthering Jack Smith Politics Tanya Chutkan