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(Photo by Win McNamee/Getty Images)
This afternoon, Special Counsel Jack Smith filed two motions in the DC election interference case against Donald Trump. As usual, the former president’s worst enemy was his own big mouth. But in an exciting twist, today’s filings feature his lawyer John Lauro’s intemperate ramblings as well.
In the first motion, archly captioned “Opposed Motion for Fair and Protective Jury Procedures,” the government requests that prospective jurors be given written questionnaires three weeks before the trial. This would streamline the process, as well as obviating the need for obviously disqualified jurors to show up in court. And while Trump’s ultimate goal is to delay a reckoning as long as possible, it seems more likely that his objection is to the proposed “reasonable and standard restrictions to protect jurors.”
Citing “the particular sensitivities of this case” and “defendant’s continued use of social media as a weapon of intimidation in court proceedings,” prosecutors request an order prohibiting the defense team from “friending” or “following” potential jurors on social media platforms to view restricted profiles. Similarly, they want a ban on disclosing jurors’ identities. With a proposed gag order already under consideration, the special counsel draws the court’s attention to a social media post last week in which Trump accused New York Supreme Court Justice Arthur Engoron’s law clerk of being Senate Majority Leader Chuck Schumer’s “girlfriend.”
The second motion asks Judge Chutkan to require Trump to disclose within the next two months if he really does intend to present an advice of counsel defense, as his lawyer John Lauro vowed repeatedly on national television.
The government concedes that the caselaw is mixed, with some judges ordering defendants to declare their planned affirmative defenses in advance of trial, and others refusing to impose such an obligation. But here, the defense’s strategy is hardly a secret.
Trump “had an advice of counsel, a very detailed memorandum from a constitutional expert,” Lauro told Fox on August 1, before hopping on to CNN to claim that “Mr. Trump had the advice of counsel, Mr. Eastman, who was one of the most respected constitutional scholars in the United States, giving him advice and guidance.” Five days later on NBC’s Meet the Press the lawyer complained that his client was being indicted for “following legal advice from an esteemed scholar, John Eastman,” adding, “one thing for certain, President Trump acted under the advice of counsel when he petitioned, under the First Amendment, petitioned Mr. Pence.”
Here, where “the defendant has broadcast to the world his intent to rely on this defense,” the government argues that it would be unfair to allow him to spring it on prosecutors at trial. To assert an advice of counsel defense, Trump would have waive attorney-client privilege with respect to several defendants who are currently unavailable to the government.
To wit:
During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.
If Trump really does invoke an advice of counsel defense, prosecutors will be entitled to depose many of those witnesses and access their communications. And since the government front-ended its discovery, Trump already has all the transcripts of witness interviews, so he knows exactly which of cronies and kids invoked attorney-client privilege.
Prosecutors request that the court compel Trump to, umm, specify or get off the pot with respect to this defense by December 18, when exhibit lists are due. Tune in next week to find out why Trump doesn’t have to admit on the record what his lawyer told every journalist in town, but is still free to harvest screenshots from jurors’ Facebook pages and blast them out to his millions of followers on Truth Social.
US v. Trump [DDC Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
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