Trump Must Formally Declare if He Will Use Advice-of-Counsel Defense in DC Case, Judge Rules

Former President Donald Trump must formally declare whether he intends to argue he was acting on the advice of his lawyers as a defense strategy in the Washington, D.C. election-subversion case, a federal judge ruled Wednesday.

U.S. District Judge Tanya Chutkan partially granted a motion by Special Counsel Jack Smith's office requesting the declaration in her three-page order Wednesday requiring Trump to file the formal notice by Jan. 15, 2024.

An advice-of-counsel defense is a legal defense in which a defendant argues that he relied in good faith on the advice of his lawyers that his course of conduct was legal, and that he made full disclosure of material facts to his lawyers before receiving that advice.

In his Oct. 10 motion, Smith's office cited several examples of Trump's current defense attorneys arguing in media interviews that the former president was acting at the advice of his lawyers in the aftermath of the 2020 presidential election.

"When a defendant invokes such a defense in court," Smith's office wrote, "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."

In her order Wednesday, Chutkan noted that local and federal criminal rules "do not expressly require advance notice of the advice-of-counsel defense."

"But because waiting until trial to invoke the defense—and comply with the disclosure obligations it triggers—could cause disruption and delay, some district courts have concluded that they nonetheless have inherent authority to order defendants to provide advance notice if they intend to do assert the defense," Chutkan wrote.

While Smith's office requested notice by Dec. 18, 2023, Chutkan gave Trump's legal team until mid-January to provide the notice.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.