Former President Donald Trump was ordered on Wednesday to state whether he intends to argue he was acting on the advice of his attorneys as a formal defense strategy in the federal election subversion case against him.
United States District Judge Tanya Chutkan partially granted a motion by special counsel Jack Smith's team of prosecutors asking for Trump to state his defense strategy, according to a three-page order telling him to file formal notice by Jan. 15.
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In an Oct. 10 motion, Smith noted that Trump's current defense attorneys have claimed in media interviews that Trump was acting on the advice of his lawyers after the 2020 presidential election.
"When a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense," Smith's team wrote, adding that "the government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing."
For Trump to assert a formal advice-of-counsel defense, he would have to satisfy two main legal requirements, according to precedent in the District of Columbia. One, defendants must show that they did not withhold any relevant information from their lawyers before they received advice about the legality of their actions. Two, defendants must also show that they attempted to apply the advice they'd received in good faith.
Should Chutkan hold that Trump has provided sufficient evidence to use an advice-of-counsel defense, she may allow jurors to consider whether Trump's reliance on his attorneys raises doubts about criminal intent. That would force Smith to attempt to convince jurors that Trump knew he was breaking the law, even if his lawyers told him his actions were legal.
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Trump's trial is slated to take place on March 4, 2024, but jury selection will begin almost a month earlier, on Feb. 9.
Smith was handed an indictment by a grand jury earlier this year and charged Trump in early August on four felony counts related to an alleged attempt to subvert the certification of President Joe Biden's 2020 election victory. Trump has pleaded not guilty to the charges.