Judge Chutkan’s Latest Order Could Force Trump to Waive Attorney-Client Privilege

Obama-appointed Judge Tanya Chutkan partially granted a motion filed by Jack Smith’s prosecutors and ordered Trump to say if he will use ‘advice of counsel’ defense in the January 6 case.

In August Trump was hit with 4 counts in Jack Smith’s January 6 case up in DC: Conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

In October Jack Smith filed a motion asking for Trump to state his defense strategy.

“The defendant has provided public notice that he intends to rely on an advice-of-counsel defense at trial,” Smith wrote on October 10. “When a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense, and the Government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.”

Chutkan partially granted Smith’s motion.

“Accordingly, the government’s Motion for Formal Pretrial Notice of the Defendant’s Intent to Rely on Advice-of-Counsel Defense, ECF No. 98, is hereby GRANTED in part and DENIED in part,” Chutkan wrote in a 3-page order.

Trump may be forced to give up attorney-client privilege if Judge Chutkan allows jurors to consider if Trump’s “reliance on his attorneys raises doubts about criminal intent.” the Washington Examiner reported.

Excerpt from Washington Examiner:

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.

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.

Trial for Trump’s January 6 case in DC is scheduled to begin on March 4, 2024.

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