Special counsel Jack Smith is demanding to know whether former President Donald Trump actually plans to argue in court — as he and his legal team have suggested they will — that he was simply following advice from his lawyers when he attempted to overturn the results of the 2020 presidential election.
Several lawyers in Trump’s circle, including then-Attorney General William Barr, have already said they told the former president that his attempts to overturn the election were unfounded because there was no evidence of widespread election fraud.
Trump, however, appeared to lean on fringe arguments in his favor that were crafted by other attorneys, like John Eastman and Sidney Powell.
At least 25 witnesses in the case, including one Trump family member, have withheld information or documentation by citing attorney-client privilege “under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign,” the special counsel’s office said in a Tuesday filing.
If Trump uses the advice-of-counsel defense, however, prosecutors say they are entitled to some of that privileged information. It would also open up Trump’s communications with his lawyers to greater scrutiny.
Smith’s team is asking U.S. District Judge Tanya Chutkan to tell Trump’s attorneys they have until Dec. 18 to formally say whether they will rely on the advice-of-counsel defense.
Doing so, prosecutors argued, would prevent delays in the trial currently set to begin in March.
In the filing, prosecutors pointed out how many times Trump’s defense attorneys have brought up the advice-of-counsel defense in nationally televised interviews. Trump himself also nodded to it when he told former Fox News host Tucker Carlson that “we had some lawyers” telling him he could take actions that now figure in the charges against him.
“Given his extensive public statements, the defendant cannot complain that formal notice will prematurely or unfairly reveal a hidden trial strategy,” stated the 14-page filing, which was prepared by senior assistant special counsels.
While prosecutors did not name any of the witnesses who might be impacted by Trump’s decision, they said the group includes “co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.”
Smith’s office asked Chutkan in a separate filing on Tuesday to take steps to ensure Trump does not intimidate witnesses in the case.