Former President Donald Trump is facing a dilemma in his civil lawsuit over his attempts to subvert the 2020 election results. A federal judge has ordered him to declare whether he plans to use the advice-of-counsel defense, which means that he acted in good faith based on the advice of his lawyers. However, using this defense would also require him to waive his attorney-client privilege and disclose his private communications with his lawyers to the plaintiffs, who could use them as evidence against him.
The lawsuit, filed by the House Oversight Committee, accuses Trump of trying to pressure state and local officials in Georgia, Michigan, Pennsylvania and Arizona to overturn the election results in his favor. The plaintiffs seek to obtain documents and testimony from Trump and his associates, including his former chief of staff Mark Meadows, his former personal lawyer Rudy Giuliani, and his former campaign lawyer Sidney Powell.
Trump has resisted complying with the discovery requests, claiming that they are irrelevant, burdensome, and protected by privilege. He has also hinted that he might use the advice-of-counsel defense, which is rarely used in civil cases and has a high burden of proof. To invoke this defense, Trump would have to show that he fully disclosed all relevant facts to his lawyers and followed their advice without any deviation.
On November 8, 2023, U.S. District Judge Tanya Chutkan issued an order asking Trump to declare by November 15, 2023, whether he intends to use the advice-of-counsel defense. If he does, he would have to identify the lawyers who advised him and the dates and contents of their communications. He would also have to produce the documents and information that he shared with his lawyers and that they shared with him.
Legal experts say that Judge Chutkan’s order puts Trump in a difficult position and forces him to either reveal his conversations or lose his key defense. “Judge Chutkan’s order puts Trump in a box. He has to either put up or shut up on his advice-of-counsel defense. He can’t have it both ways,” said Renato Mariotti, a former federal prosecutor and CNN legal analyst.
“Trump is in a bind. He can’t credibly claim that he relied on the advice of his lawyers when he was publicly contradicting them and pressuring them to do his bidding. And he can’t afford to expose his communications with his lawyers, which could reveal his true motives and intentions,” said Joyce Vance, a former U.S. attorney and professor at University of Alabama School of Law.
“This is a very clever move by Judge Chutkan. She is forcing Trump to make a choice that he doesn’t want to make. Either he gives up his attorney-client privilege or he gives up his defense,” said Michael Zeldin, a former federal prosecutor and CNN legal analyst.
“The advice-of-counsel defense is a very risky strategy for Trump. It opens the door to a lot of discovery that he would rather keep secret. And it also requires him to prove that he acted reasonably and in good faith, which is a hard sell given the overwhelming evidence of his election lies,” said Barbara McQuade, a former U.S. attorney and professor at University of Michigan Law School.
“This is a classic example of how the law can be used to expose the truth. Judge Chutkan is not letting Trump hide behind his lawyers or his privilege. She is making him face the consequences of his actions,” said Malcolm Nance, a former U.S. intelligence officer and author of The Plot to Betray America.
– “Puts Trump in a box”: Experts say Judge Chutkan just forced Trump to “put up or shut up” on defense, Salon.com, November 9, 2023
– Trump ordered to say if he will use ‘advice of counsel’ defense in 2020 elections case, Washington Examiner, November 8, 2023
– Judge Chutkan Strikes Blow Against Donald Trump, MSN, November 8, 2023
– Judge orders Trump to say if he will use ‘advice-of-counsel defense in 2020 elections case, Raw Story, November 8, 2023