Legal analysts closely monitoring the numerous criminal and civil cases involving former President Donald Trump are lauding the recent order from U.S. District Judge Tanya Chutkan.
The judge’s directive, issued on Wednesday, compels Trump to substantiate the defense he claims to be preparing in response to charges of allegedly attempting to overturn the 2020 election.
According to Politico’s Kyle Cheney, Judge Chutkan requires Trump to disclose by January 15 whether he intends to rely on an “advice of counsel” defense in his Washington, D.C. trial.
Moreover, he must provide relevant documentation supporting this defense at the same time. Trump is anticipated to argue that he cannot be held accountable for the alleged crimes because he acted in “good faith” based on advice from his attorneys.
However, Judge Chutkan stipulates that for this defense to be valid, Trump must have fully disclosed all material facts to his attorney before receiving advice.
In a noteworthy move, the judge further mandates that if Trump invokes the advice of counsel defense, he must waive attorney-client privilege.
This means he would need to provide the court with all documents and evidence related to his claim, even those that may contradict his assertions.
Constitutional law professor and former Deputy Asst. Attorney General Harry Litman praises this development, stating that Trump now has to substantiate his defense well in advance.
Litman emphasizes that Trump’s legal basis for asserting advice of counsel is questionable, and the early disclosure prevents any attempts to manipulate the situation.
Joyce Vance, also a law professor and former U.S. Attorney, adds that Trump faces a significant challenge convincing the judge to allow an advice of counsel defense at trial.
She highlights the difficulty of relying on the advice of co-conspirators, even if they are lawyers. If the judge rules against him, Trump’s defense cannot be mentioned during the trial.
