Jack Smith Has Set a Trap for Trump

And it’s based on his “advice of counsel” defense

Trump’s checkered past v. Smith’s chess strategy. Illustration by the brilliant Robert Carter, whose work can be found at crackedhat.com

I was once an avid chess player, and I can appreciate a great strategic move when I see one. And that is what I see developing in the second federal indictment of Donald Trump on three charges of conspiracy and attempted obstruction of Congress.

For months, Trump has telegraphed that he intends to rely upon a defense known generally as “advice of counsel.” This means Trump will claim he was just doing what his legal advisors had said he could do, and therefore he can’t be guilty of conspiring to overturn the election. He recently reaffirmed that he intends to rely upon the defense that he was “advised by many lawyers” that what he did was perfectly legal.

Trump’s new attorney on this case, John Lauro, also has made it clear that this is one of the defenses they will deploy. Trump was “entitled to believe and trust advice of counsel,” Lauro said on the Today show on Wednesday. “You have one of the leading constitutional scholars in the United States, John Eastman, say to President Trump, ‘This is a protocol that you can follow. It’s legal.’ That eliminates criminal intent,” Lauro said.

[Narrator: John Eastman is in fact not one of the leading constitutional scholars in the U.S. and he is actually presently facing disbarment proceedings in California. He has also admitted to Mike Pence and his lawyers that the “protocol” was unsupported by any precedent and would lose unanimously before the Supreme Court.]

Eastman’s credentials and protocols aside, “advice of counsel” is a tough defense to assert. It comes with some preconditions that could prove highly damaging to Trump as well as legal hurdles that the jury could quickly find render the defense unavailable to him. 

Let’s take a look at some of these, and then see how Special Counsel Jack Smith may be leagues ahead of Trump on their probable implications to the case.

The “advice of counsel” defense waives attorney-client privilege

If you’re going to assert that you are innocent because you were just following the legal advice given to you by your lawyers (while throwing them under the bus in the process), then one thing that disappears right away is your right to assert that your communications with those lawyers are “privileged.”

This makes sense because, after all, the jury would need to understand exactly what your lawyers told you to see if you in fact followed that advice.

So what does that mean in practical terms? For starters, all written and electronic communications between you and your attorneys become fair game and can be subpoenaed and used by prosecutors. And further, many of your attorneys’ notes (i.e. “work product”) could become relevant and discoverable if it’s related to that advice. Finally, your attorneys can be called to the stand to testify about what they told you.

This is a pretty major shift in how things normally operate. Lawyers and their clients normally get to communicate about things with candor, knowing that what they said and wrote to one another won’t see the light of day in a courtroom. But if Trump really intends to assert the advice of counsel defense, then these communications are all coming in.

The person giving advice actually has to be your lawyer

Hat tip to the folks at Just Security for these next four points, enumerated in their model prosecution memo, on asserting the defense of advice of counsel. 

The defense may fail on technical grounds with respect to people like John Eastman because he was never really Trump’s lawyer. Someone can “function” as your lawyer, as Eastman did here, but still not legally be your lawyer because 1) you don’t have any agreement with them, and 2) you never paid them anything.

Moreover, the fact that someone happens to be a lawyer doesn’t make them your lawyer just because they provide you legal advice. Trump will bear the burden of proof, as the one raising the advice of counsel defense, to show that John Eastman and Rudy Giuliani (and co-conspirators Sidney Powell, Jeffrey Clark and Kenneth Chesebro) were actually his own lawyers, and not just attorneys with opinions about how to plot a coup. He may be able to get there with Eastman and Giuliani, but I foresee problems with the others who were lawyers for the campaign (e.g. Powell and Chesebro), or in Clark’s case, simply someone who worked at the Justice Department.

The timeline has to line up

Trump may have to be reminded of the linear nature of the passage of time. For advice of counsel to work as a defense, you can’t already have had the criminal idea and then blame your attorneys for misleading you into criminality.

That will be of particular interest around Trump’s false claims that the election was stolen. We know from the evidentiary record that Trump intended to claim election fraud long before the votes began to be counted. What lawyers like Sidney Powell and Rudy Giuliani supposedly told him later about massive electoral fraud doesn’t matter if he already intended to falsely claim it.

They can’t be co-conspirators with you

Advice of counsel isn’t available to a defendant if the lawyers were in on the conspiracy. It’s one thing, for example, for your lawyers to write an opinion letter saying that what you are doing is legal in their opinion. That happens a lot, especially in corporate America around securities laws and accounting. Business people frequently rely on those opinion letters to move forward with their plans.

But when a lawyer not only gives advice to act illegally but also then actively works with the defendant to execute the plan, that becomes a conspiracy in which the lawyer is “integrally involved in the sham operation,” as the Fifth Circuit put it in U.S. v. Carr. The advice of counsel defense falls apart as a result, because otherwise a defendant like Trump could escape the consequences of having participated in a crime simply by saying he was just following the lead of his attorneys who were actually doing the criming, too.

The reliance has to be reasonable, and you can’t lawyer shop

A final condition for the advice of counsel defense is that it had to have been reasonable to rely on your lawyers’ advice. This includes a prohibition on “shopping” around for a lawyer until you finally get someone who tells you what you want to hear.

All of Trump’s White House counsel advised against what he planned to do. They told him there was no massive election fraud. They told him that Mike Pence didn’t have the power to unilaterally usurp the will of the voters. And it was objectively unreasonable to rely on any advice saying that he did, given that we are a democracy with tens of millions of voters and Pence is just one guy.

But what did Trump do? He surrounded himself with “Team Crazy,” who were willing to advance his false claims and soft coup. He did this even while privately admitting that Sidney Powell’s conspiracies were “crazy” and privately telling Mike Pence that he was “too honest” to do the dishonest thing proposed by Eastman.

Jack Smith’s trap

Given all of this, Trump’s insistence on proceeding with his advice of counsel defense opens some interesting possibilities—ones upon which Jack Smith appears to have capitalized.

It is fascinating to me, for example, that Smith has identified six co-conspirators in the indictment, all of whom (or nearly all of whom depending on who #6 is) were lawyers allegedly in on the three conspiracies. So let’s game this out a bit.

There are a few ways Trump can get evidence of his advice of counsel defense before the jury. The most straightforward way is for Trump himself to testify. That is generally a terrible idea, and with a defendant like Trump, it would be fraught with risks of perjury because Trump is a habitual liar. It isn’t clear that even Trump would dare take the stand. But it’s hard to see how he gets that evidence in otherwise.

But by putting advice of counsel at issue, Trump has also opened the door to prosecutors calling his co-conspirator attorneys to the stand. Without the advice of counsel defense at issue, they likely could successfully block their testimony on grounds of attorney-client privilege. But because Trump has raised the defense, that privilege would be no longer available. They would either have to testify or plead the Fifth. 

Juries aren’t supposed to assume any guilt or criminality from the assertion of the Fifth. But how would it look for Trump to be saying that he merely followed the advice of counsel, yet for none of his counsel to be willing to self-incriminate over what that advice was? The optics would be pretty horrible.

Moreover, it’s pretty clear that Smith is hoping to flip one or more of these co-conspirators. That’s likely why they remain unindicted and unnamed, even though it’s already clear who five of them are.

Now, one way to convince your attorneys to flip on you is to claim that the advice they gave you was criminal, and you merely followed it. In other words, they should go to prison, but not you. Team Crazy, meet the Trump Bus.

But flipping attorneys is problematic, normally, because even if they agree to squawk, prosecutors normally can’t put them on a stand and ask them to testify about communications with their client. That’s because the attorney-client privilege belongs to the client. It isn’t something attorneys by themselves can decide to waive.

But here, again by putting advice of counsel at issue, Trump himself has waived the privilege. That means if one or more of these co-conspirator attorneys flip on Trump, they can speak openly to prosecutors about their communications with him and what they plotted together. And then they can take the stand and say the same. This could be used to prove that Trump indeed was at the top of the three conspiracies and calling the shots, jusy as the indictment alleges, working directly with the co-conspirators to defraud, obstruct and conspire against the voting rights of millions of Americans.

In short, Jack Smith appears to have leveraged the advice of counsel defense by naming a bunch of lawyer co-conspirators. This could permit him to crack open the black box of the conspiracies, should any co-conspirator cooperate. And rather than fight the assertion of the defense on legal grounds, which could set up an issue for appeal, he could allow it to go forward so that all the communications with the co-conspiring attorneys come in and all of them would be fair game for the witness stand.

Then, after closing arguments are done, the jury could still conclude, fairly readily based on jury instructions from the judge on the advice of counsel defense, that Trump has failed to meet his burden of showing that the defense exonerates him. This is because, to recap, the evidence shows

• These lawyers weren’t his lawyers;

• Trump had the idea to assert election fraud and declare victory before he even talked to them;

• The attorneys were all in on the co-conspiracy with Trump;

• Trump shopped around for people willing to tell him the “advice” he wanted to hear, and his reliance on that advice was unreasonable.

I’m confident based on the publicly available evidence that each of the above conditions applies. And remember, any one of them means Trump’s advice of counsel defense fails, even after he has given such a huge gift to Smith by waiving attorney-client privilege.