Trump wants to cite lawyers’ advice in DOJ’s Jan. 6 case. That could be risky.

Oct 16 (Reuters) – Former President Donald Trump and his defense counsel in the U.S. Justice Department’s case accusing him of illegally attempting to overturn his defeat in the 2020 presidential election have repeatedly told television interviewers that Trump was merely following guidance he received from his lawyers, including a constitutional scholar.

But asserting a formal advice-of-counsel defense carries some significant risks for Trump, as a recent brief from prosecutors in Special Counsel Jack Smith’s office makes clear.

Prosecutors asked U.S. District Judge Tanya Chutkan of Washington, D.C., to order Trump to disclose by Dec. 18 whether he intends to rely on a formal advice-of-counsel defense to counter the government’s argument that Trump knew he was engaged in illegal conduct.

To assert a formal advice-of-counsel defense, Washington, D.C., precedent holds that Trump must provide evidence on two points. He must show that before he received advice about the legality of his actions, he told his lawyers everything they needed to know to give him sound advice. He must also show that after he received his lawyers’ advice, he relied upon it in good faith, meaning that he abided by what he considered to be legally well-grounded counsel.

If Trump satisfies those requirements, the judge may instruct jurors that the former president’s reliance on advice from his lawyers raises doubts about his criminal intent.

In that scenario, the government must convince jurors that Trump knew he was engaged in illegal conduct, despite his claim that he was following his lawyers’ directions.

You can see why Trump and his criminal defense lawyers are contemplating an advice-of-counsel defense. They have pointed, in particular, to Trump’s alleged reliance on a memo in which law professor John Eastman, a onetime U.S. Supreme Court clerk, outlined his theory that Vice President Mike Pence could thwart the formal congressional certification of Joe Biden’s victory in the presidential election.

“What [Trump’s] being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman,” Trump lawyer John Lauro of Lauro & Singer told NBC’s Meet the Press on Aug. 6.

But to obtain a jury instruction to that effect, Trump will have to waive his right to keep his communications with Eastman about the 2020 elections out of the government’s hands. And according to prosecutors’ Oct. 10 brief, that confidentiality waiver could extend to Trump’s exchanges with other lawyers about challenges to the 2020 election results.

Trump defense lawyers Lauro and Todd Blanche did not respond to my email query. A spokesperson for the Special Counsel’s office declined to comment.

Eastman, like Trump, has denied wrongdoing in connection with efforts to block certification of 2020 election results. He has said in a California disciplinary proceeding that his legal theories were viable and advanced in good faith. His criminal defense attorneys did not immediately respond to my query about the advice-of-counsel issue.

Once Trump invokes the advice-of-counsel defense, prosecutors argued in the Oct. 10 brief, he is required to hand over not just any evidence he plans to use to back his claim that he was merely following his lawyers’ advice – but also any confidential communications or documents that will allow prosecutors to refute his advice-of-counsel defense.

“It opens up the door to pretty much everything related to the attorney’s legal advice,” said former federal prosecutor Lynn Neils of Foley Hoag, who now focuses on criminal defense.

That could be a risky proposition, especially because Trump, Eastman and other Trump attorneys are facing related charges in state court in Fulton County, Georgia.

Prosecutors told Chutkan in the Oct. 10 brief that no fewer than 25 witnesses – including “co-conspirators, former campaign employees, the campaign itself and outside attorneys” – have cited Trump’s right to confidentiality when those witnesses refused to turn over information sought by the government.

If Trump waives the right to confidentiality over some or all of his communications with his attorneys, prosecutors hinted, the government may be entitled to see some of that withheld material. At the very least, the government said, Trump prosecutors will need to investigate previous assertions that material is shielded by Trump’s attorney-client privilege.

The government said the judge should allow time for prosecutors to test Trump’s advice-of-counsel theory before the trial begins so that the proceeding in front of the jury is not disrupted by wrangling over the confidentiality and admissibility of evidence.

Eastman’s memo may present particular admissibility problems, said former prosecutor Neils.

If Trump’s defense lawyers intend to argue that the former president was simply heeding the advice contained in the memo, she said, Trump will have to offer witness testimony that he received the advice and followed it in good faith.

It’s unlikely that Eastman would testify in Trump’s criminal trial in Washington when he is facing charges in Georgia.

If Eastman were to invoke his 5th Amendment right to avoid testifying, Trump’s lawyers would either have to find another witness to attest that Trump relied in good faith on Eastman’s advice – or would have to call Trump himself to testify. Whoever the defense calls will, of course, be subject to cross-examination by prosecutors.

That’s another risk for the defense, on top of the risk of exposing Trump’s confidential communications and documents to prosecutors.

Defense counsel are due to respond to the government’s motion for early disclosure of their advice-of-counsel plans on Oct. 20.

Read more:

Judge bars Trump from targeting prosecutors, witnesses in election case

Judge says indicted Trump lawyer Eastman’s ethics trial will continue, for now

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