With the Manhattan district attorney’s criminal trial of Donald Trump set to open in less than two weeks, Judge Juan Merchan has ordered that neither side may file new motions without his express permission.
But that prohibition did not extend to a filing Trump made Tuesday pursuant to Merchan’s order last month. Specifically, Merchan directed Trump to disclose by Tuesday whether he intends to rely on an advice of counsel defense and “to produce all discoverable statements and communications within his possession or control” by that date, too.
“What exactly is an advice of counsel defense, Lisa?” you might be asking.
As Judge Lew Kaplan (who oversaw both E. Jean Carroll trials) explained in the lead-up to last year’s trial of Sam Bankman-Fried, it’s a collection of evidence that a defendant uses to raise reasonable doubt in the jury’s mind as to whether prosecutors have adequately demonstrated his intent to commit the crime or crimes in question. Specifically, it consists of proof that a defendant:
- “made a complete disclosure to counsel [concerning the matter at issue];”
- “sought advice as to the legality of his conduct;”
- “received advice that his conduct was legal;” and
- “relied on that advice in good faith.”
And significantly, when a defendant invokes the advice of counsel defense, that typically waives any privilege he or she could claim over communications with their lawyers about the matter in question.
In the New York criminal trial, however, Trump wants to point to his lawyers’ involvement in the Stormy Daniels settlement and related events as proof that he lacked intent, while at the same time disclaiming a “formal advice-of-counsel defense” and insisting that he is not waiving any attorney-client privilege. Instead, Trump announced in Tuesday’s filing that he “intends to elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise” to the 34 felony counts with which he…
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