This week, the D.C. federal court presiding over the 2020 election case against former President Trump granted, in part, a motion by the special prosecutor’s team asking the court to require Trump to disclose in advance of trial if he intends to use an “advice of counsel” defense. The premise for the charges, in this case, is that Trump “knew” he had lost the 2020 election, so the “advice of counsel” defense is key to proving his beliefs about the legality of any action he and his lawyers took in response to election results.
The prosecutor sought these disclosures about the defense’s game plan by Dec. 18, 2023 — almost three months in advance of the March 4, 2024 trial date, but such disclosures by the defense are not required by the federal rules of criminal procedure. This is simply another effort by the special prosecutor’s team to gain all the information and tactical advantages it can before trial.
In response, Trump’s attorneys offered to give notice of whether the defense team will assert an “advice of counsel” defense by Jan. 15, 2024, but sought to delay the factual disclosures until after the court had a chance to consider the proposed jury instructions the parties submitted.
The court essentially “split the baby” between these requests, ordering Trump to provide both notice of whether he will raise an “advice of counsel” defense and any related factual disclosures on Jan. 15. Specifically, the defense must disclose any communications or evidence it intends to use to establish the “advice of counsel” defense, and any privileged communications it does not intend to use at trial, but which are relevant to proving or undermining the “advice of counsel” defense.
The attorney-client privilege cannot be used as “both a sword and a shield,” meaning the defendant can’t just use the privileged materials that help him, but hide the privileged materials that cut against his position. Since an “advice of counsel” defense waives the attorney-client privilege, the court is not being unfair to Trump by requiring him to disclose all of the attorney-client communications that bear on his defense. The issue is when he had to make this disclosure.
Notwithstanding the usual overblown rhetoric in the corporate media about this ruling, it actually is not as significant as one might superficially think. In other cases, this ruling could be a very big issue but not here, although the trial judge is again applying a different standard to Trump.
The Charges Against Trump
The indictment alleges that Trump “spread lies that there had been outcome-determinative fraud in the [2020] election and that he had actually won.” It spins this basic concept out into three overlapping conspiracy charges: conspiracy to defraud the U.S., conspiracy to obstruct the Jan. 6 congressional proceeding, conspiracy against the right to vote — and a charge of obstructing the certification of the electoral vote on Jan. 6, 2021.
Importantly, the indictment accuses Trump and his alleged co-conspirators of using the following specific methods to commit these offenses: (1) using knowingly false claims of election fraud to get state officials to change the election results; (2) organizing fraudulent slates of electors; (3) attempting to use the Justice Department to conduct sham investigations and send a letter to states falsely claiming DOJ had identified significant concerns with the election; (4) attempting to enlist then-Vice President Pence to stymie the Jan. 6 congressional proceeding and, on the morning of Jan. 6, directing Trump’s supporters to the Capitol to obstruct Congress; and (5) exploiting the disruption of the Jan. 6 proceeding by again falsely claiming election fraud and trying to convince members of Congress to further delay proceedings.
‘Unlawful Means’ to Challenge Election Results
Trump’s fundamental defense is that he instead genuinely believed he had won the election. His counsel, John Lauro, has said: “Trump believed in his heart of hearts that he had won that election, and as any American citizen, he had a right to speak out under the First Amendment.” Lauro contends that the prosecution will never be able “to prove beyond a reasonable doubt that President Trump did not believe that he won the election.”
But the criminal charges don’t turn simply on whether Trump believed he had won or lost the election. And the legal advice he received is largely irrelevant to this issue. If Trump’s lawyers told him that they thought he had won, or that they had uncovered evidence of voter fraud, that would be relevant to Trump’s state of mind, but it wouldn’t be legal advice.
Instead, the “advice of counsel” Trump received is relevant to this case because the government alleges that, even if Trump believed he had won, he is guilty if he and his alleged co-conspirators used unlawful means in seeking to reverse the election results. The legal advice that Trump received is highly relevant to his beliefs about the legality of the actions that he and his supporters took.
Lauro has said that Trump, in part, acted on the advice of John Eastman, an “esteemed constitutional scholar” who drew up a number of options for challenging the election results — including sending a slate of alternate electors and petitioning the vice president to pause the electoral count. Similarly, the proposed Justice Department letter was the brainchild of Jeffrey Clark, a senior Justice Department official who met repeatedly with Trump after the election. All of which brings us to the current motion filed by the special prosecutor.
A Defendant’s Obligation to Disclose His Defense to Prosecutors
In a federal criminal case, a defendant almost never has to disclose his defense to the government or the court in advance of trial. If the defendant requests pre-trial discovery from the government (which happens 99.9 percent of the time), the defense has a reciprocal obligation to disclose only three categories of evidence that it plans to use at trial: photos, documents, or objects; medical or scientific test results; and any expert witnesses, along with the opinions they will offer, the bases for those opinions, and the witness’s qualifications as an expert. But the overall defense, and other evidence in support of it, do not have to be disclosed.
Further, the Federal Rules of Criminal Procedure require pretrial disclosure of only three defenses: insanity, alibi, and public-authority (i.e., the defendant believed a law enforcement or federal intelligence agency authorized his conduct). These defenses must be disclosed pretrial because it takes time to prepare a proper response to them, and the defenses are based on facts and circumstances other than those that make up the charged offense. For example, the government must track down unknown witnesses that might contradict an alibi, or it must hire a psychiatrist to evaluate a defendant’s sanity. So rather than delaying a trial that is already underway while the government gathers its evidence, the rules require pretrial disclosure of these defenses.
The rules do not impose any disclosure obligation for an “advice of counsel” defense. Nor does the same rationale for early disclosure apply to this defense. The prosecution doesn’t need time to go out and locate rebuttal witnesses or experts to counter an “advice of counsel” defense. It can’t bring in its own expert to say the legal advice was faulty. Whether the legal advice at issue is objectively correct or not doesn’t matter.
And the facts and circumstances concerning Trump’s advice of counsel defense are already well known to the government. Indeed, the special prosecutor investigated them and alleges that Eastman, Clark, and Rudy Giuliani are unindicted co-conspirators. The advice that they gave Trump is no mystery, although the special prosecutor may not yet have been able to obtain all of the details.
The Special Prosecutor’s Motion
With no law or rule mandating disclosure in this case, the special prosecutor asked the court to order disclosure based on its “inherent authority.” Some federal courts have accepted this argument and ordered a defendant to disclose an “advice of counsel” defense before trial, but others have not. The prosecutors offered two reasons why the court should order disclosure: fairness and efficiency. Neither argument is compelling here, and requiring the disclosure runs counter to the ordinary practice in criminal cases and does not fall within the rationale for exceptions to that ordinary practice.
The federal rules provide for far less pretrial disclosure in criminal cases than in civil cases. It is ironic to see a prosecutor, rather than the defendant, demanding greater disclosure than the rules require by invoking “fairness.” That argument seldom works for defense counsel seeking to obtain additional disclosure from prosecutors. It would not be unfair to refuse the special prosecutor additional discovery beyond the limits of the governing rules and tell him that he’d just have to deal with the details of the advice of counsel defense as it emerges at trial. Courts routinely deliver this message to criminal defendants.
Moreover, the prosecution does not need a formal notice about the “advice of counsel” defense. It already knows Trump will offer an “advice of counsel” defense. Further, the government does not really need further factual disclosures from Trump to understand this defense. The nature of the defense is already known, and the scheduling order already requires disclosure of defense exhibits supporting this defense by Dec. 18. In reality, the special prosecutor’s motion is totally unnecessary.
The special prosecutor argued, however, that pretrial disclosure of the “advice of counsel” materials would “prevent disruption of the pretrial schedule and delay of the trial.” This is poppycock. The prosecutor already has investigated and analyzed Trump’s “advice of counsel” defense thoroughly and developed his arguments against it. This is obvious from the indictment. Whatever additional details may emerge during trial wouldn’t afford a legitimate basis to interrupt or delay the trial.
The real issue here for the special prosecutor is that 25 witnesses withheld information from them during the government’s investigation based on Trump’s attorney-client privilege. The special prosecutor wants to know what those witnesses have to say before the trial begins. The motion whines that the special prosecutor might be “sandbagged” by their testimony at trial, especially if he were to call one of these 25 persons as a prosecution witness. This argument is totally unpersuasive.
Most of the evidence relating to Trump’s “advice of counsel” defense has been publicly disclosed long ago, if nothing else through the testimony provided to the congressional Jan. 6 Committee in its interviews of witnesses who were present at the time the advice was provided or to whom it was repeated. Moreover, defense lawyers encounter this situation in every trial where government witnesses testify to details that are not spelled out in the indictment or provided in discovery.
No new bombshells are likely to emerge as a result of whatever additional disclosures are made pursuant to the court’s order. Instead, this motion is really about the special prosecutor being anal-retentive and digging for every scrap of information he can obtain before the trial begins, with the assistance of the trial court, which has set an unreasonably early trial date in this case and is willing to accept the government’s bogus argument that pretrial disclosure of Trump’s defenses will promote “efficiency.”
Leslie McAdoo Gordon is the principal of McAdoo Gordon & Associates, P.C., founded in 2003. She provides criminal defense for individuals facing misdemeanor and/or felony charges, as well as “white collar” criminal offenses in state and federal courts. She also represents contractors and individuals facing administrative sanctions, including revocation of security clearances and debarment from federal contracts. Ms. McAdoo Gordon graduated cum laude from the Georgetown University Law Center in 1996. She is licensed to practice law in Maryland, Virginia, the District of Columbia, and numerous federal trial and appellate courts, including the U.S. Supreme Court.
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