Jack Smith is asking former President Donald Trump to put his money where his mouth is. Or at least to put his documents there.
In a motion filed this week, the special counsel asked Judge Tonya S. Chutkan to order Trump to provide formal pre-trial notice of any intent to rely on advice of counsel as a defense in the federal election interference case. According to the motion, Trump and his lawyers have “repeatedly and publicly” stated an intent to assert the defense at trial. The Dec. 18 exhibit list deadline, Smith argues, is the time for Trump to put up or shut up.
The Dec. 18 exhibit list deadline, Smith argues, is the time for Trump to put up or shut up.
Smith’s demand is important because this defense would trigger two significant consequences — a waiver of attorney-client privilege and a duty to produce all documents related to the advice. Until now, Trump has been able to have it both ways — protect testimony and documents from disclosure as privileged, while also claiming that his conduct was lawful because he simply relied on what his lawyers told him.
In the court of public opinion, where Trump seems most focused at the moment, his reliance on lawyers may sound perfectly reasonable to supporters. But Smith’s motion will push Trump to make a decision — use the advice of counsel defense at trial or protect every document, memo, email, text message sent between him and Sidney Powell, John Eastman, Rudy Giuliani and the other lawyers William Barr referred to as a “clown car.”
The time for evasion is coming to a close. And what Trump decides will have immediate consequences going forward. Disclosure of those materials between Trump and his lawyers could be explosive because they may not only debunk the advice of counsel defense, but could contain other admissions that Smith could use at trial.
Advice of counsel is what is known as an affirmative defense. That means the defendant essentially says they committed the conduct alleged, but a legal reason exonerates them anyway. For example, self-defense in a murder case is an affirmative defense — a person has a legal right to kill rather than be killed. In this case, the affirmative defense of advice of counsel, if successful, would negate Trump’s criminal intent to engage in the alleged election fraud because Trump was acting in good faith on the advice of lawyers.
While the government always has the burden of proof in a criminal case, an affirmative defense is unique in that it requires the defendant to produce the evidence he will rely on to assert the defense. An advice of counsel defense requires evidence that the defendant relied in good faith on the lawyer’s advice that the conduct in question was legal, even if the advice later turns out to have been wrong, and proof the defendant made full disclosure of all material facts to his attorney before receiving the advice.
Notably, Smith and his team do not concede that Trump has a valid advice of counsel defense, and contest his ability to assert it. Anecdotally, Barr also pointed out that Trump rejected the advice of lawyers for the Justice Department, the White House and even his own campaign, instead seeking out outside lawyers who would tell him what he wanted to hear. According to allegations in the indictment, even Trump said that Powell sounded “crazy.” In Barr’s succinct assessment, “I don’t think that dog is going to hunt.” The discovery requirement covers not just the documents that prove Trump’s reliance on advice of counsel, but those that refute it. But if Trump tries to assert the advice of counsel defense, he must waive the attorney-client privilege and produce in discovery documents related to that advice. The discovery requirement covers not just the documents that prove Trump’s reliance on advice of counsel, but those that refute it. Every scrap of paper or digital record debunking the theories of Trump’s co-conspirators would need to be turned over. In this case, the waiver would open the floodgates to discovery, since no fewer than 25 witnesses have asserted the privilege in refusing to answer questions or turn over documents. The sheer volume is one of the reasons Smith is asking for the court to force Trump to decide now. Waiting until after the trial starts would cause significant delays while the defense produces the relevant documents and the government reviews them. What’s more, a mid-trial waiver would compromise the government’s ability to conduct interviews of those witnesses in advance. Regardless of whether Smith’s motion succeeds, at some point Trump will have to decide whether asserting what may be a flimsy defense is worth sharing his trove of secrets.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
