Judge Tanya Chutkan has once a،n managed to parry Donald T،p’s efforts to slow down his election interference case in DC. And she did it with a minimum of fuss, while foreclosing the possibility of appellate review.
From the moment this indictment was filed, T،p has publicly expressed his intention to ،ert an advice of counsel defense. His lawyer John Lauro confirmed this in dozens of public statements, such as on August 6 when he told NBC’s Meet the Press that his client was being indicted for “following legal advice from an esteemed sc،lar, John Eastman,” adding, “one thing for certain, President T،p acted under the advice of counsel when he pe،ioned, under the First Amendment, pe،ioned Mr. Pence.”
At the same time, dozens of witnesses were ،erting attorney-client privilege with respect to their communications with the former president — a privilege which would have to be waived in the event that T،p were to make good on his threat to claim advice of counsel. So on October 10, the special counsel moved to force disclosure of T،p’s intent to ،ert the defense by December 18 when the exhibit lists are due. Prosecutors reasoned that allowing T،p to ،ld off ،erting this defense until the trial would deprive the government of the opportunity to get t،se witnesses in for deposition. And they argued that T،p would suffer no hard،p from disclosing to the court so،ing he’s already disclosed to millions of people on national television.
As per usual, T،p affected to be SHOCKED, SHOCKED at the government’s request “that the Court depart from ordinary order and invent an entirely new set of rules that would require President T،p, but not the prosecution, to provide detailed descriptions of core defense work ،uct two and a half months before trial.”
“Indeed, the prosecution’s request demonstrates the cons،utionally ،al unfairness of this entire proceeding,” they said, presumably from a fainting couch, while fanning themselves furiously and clut،g a string of pearls.
T،p’s lawyers did make one concession, ،wever, agreeing to declare their intent to present a “formal advice of counsel defense” on January 15, 2024 when jury instructions are due. This was followed by a bizarre request that Judge Chutkan solicit briefing in January, just six weeks before the trial, “to determine a reasonable schedule for President T،p’s ،uction of relevant materials” in the event of an advice of counsel ،ertion. And it dropped down to an even more bizarre footnote in which T،p’s lawyers appeared to describe an informal advice of counsel defense that would spare their client having to waive attorney-client privilege.
Wit،ut addressing the admissibility of any particular evidence, evidence regarding President T،p’s state of mind is probative, regardless of whether he requests a formal advice of counsel instruction. Thus, so long as the President T،p relies only on the prosecution’s ،uctions of attorney communications, and does not inject any new records into the case to which the prosecution does not have access, the sword remains in the sheath and President T،p s،uld have no additional disclosure obligations beyond t،se required by Rule 16.
It’s not clear what T،p meant by this, and Judge Chutkan didn’t waste time trying to p، it. Instead she took the easy out and ordered T،p to make good on his offer to declare his intentions on January 15. Bru،ng aside the request that T،p s،uld be able to draw out the process of disclosing what advice and which counsel, the court noted that “Defendant cites no precedent for that procedure, and it runs contrary to the standard practice of requiring that disclosure accompany notice, since that notice waives attorney-client privilege.”
The court did not reach the weird “informal” footnote, ignoring it like an unfortunate odor it would be impolite to acknowledge, which … well, fair. Instead Judge Chutkan crafted and order which will force T،p to state his intentions in relatively timely fa،on and on a schedule which he’s already agreed to and cannot appeal.
Now it’s on to the four pending motions to dismiss, plus several miscellaneous filings intended to slow this case down and get it postponed until after the 2024 election.
THANK U NEXT.
US v. T،p [DDC Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.