(Photo by Win McNamee/Getty Images)
A month ago, Special Counsel Jack Smith moved to force Donald Trump to disclose any plan to assert an advice of counsel defense in the Florida documents case.
“The Government is not aware of any valid basis for an advice-of-counsel defense, but, if asserted at trial, it would require inquiry into any attorney communications on which it is based, and, under precedent in this District, would require disclosure of any such attorney-client communications,” prosecutors wrote.
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By then, Trump and his allies had spent a year yelling “SOCKS CASE!” and claiming that he had a perfect legal right to retain government documents in defiance of a subpoena because in 2012 Judge Amy Berman Jackson refused to order the National Archives to seize tapes made by Bill Clinton’s biographer Taylor Branch in the late 90s. This idea appears to have had its genesis with Judicial Watch’s Tom Fitton, who is not a lawyer, although the case was later cited by Trump’s actual counsel when it challenged the warrant last year.
But if this motion was an unsubtle reminder to Judge Aileen Cannon that it has been her standard practice to force defendants to disclose their intent to assert the advice of counsel defense, it seems to have fallen on deaf ears. On November 10, she stayed all the deadlines, and hasn’t yet said whether she’ll force Trump to put up or shut up.
Last night, ABC jumped into this void with another unsubtle nudge, reporting that Trump’s lawyer Jennifer Little testified to the grand jury in DC that she told Trump it would be a crime to retain the documents in defiance of a subpoena. This testimony was compelled after Judge Beryl Howell abrogated attorney-client privilege under the crime-fraud exception for Little and Evan Corcoran, the lawyer dispatched to search Trump’s boxes for classified documents after they’d already been purged.
According to the New York Times, Little, who represents Trump in Georgia, “was brought in to help advise him on how to comply with the subpoena because she was one of the few people around him who knew the criminal justice system.” (Lookin’ at you, Corky and Trusty!)
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According to prosecutors, Trump wondered aloud about simply defying the subpoena.
“What happens if we just don’t respond at all or don’t play ball with them?” he asked in the summer of 2022.
“You’ve got to comply,” Little is reported to have responded. Because yeah, no shit.
If he intends to assert an advice of counsel defense, Trump will have to waive privilege as to all these communications. That would of course moot his promised challenge to the admissibility of that grand jury evidence based on spurious claims of prosecutorial misconduct.
What a lucky break for Trump that Judge Cannon seems in no hurry to make him commit to a strategy! Maybe she’ll even let him put that unpleasant decision off until after the 2024 election.
(She will.)
US v. Trump [SDFL Docket via Court Listener]
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.