So Much For That Defense, Donald
NBC’s new host of Meet the Press, Kristen Welker, largely disappointed this weekend in her debut. Donald Trump had agreed to a sit down interview, but it quickly devolved into a platform for his numerous lies and self-serving statements. Welker let Trump go on at length, failing to challenge him or fact check him in real time. Even though the interview was pre-taped, the network did not add fact checks to it before the broadcast, referring audiences instead to the NBC website where no one would bother to go.
But there was one pivotal moment where all of Welker’s flattery (she called him “Mr. President”) and softball questions landed a full-out confession, and for that I could almost forgive her the balance of the interview. It came during a key segment about Trump’s decision on election night to declare himself the winner and to begin a bad faith campaign to dispute the election results.
Today, I want to dive more deeply into that exchange and what Trump confessed to publicly. Then we’ll review one of Trump’s primary defenses to the January 6 case, known as the “advice of counsel” defense, and what he had hoped to achieve with it. From there, we can match his confession against what’s required for that defense (which in this case likely will be weighed by the jury, not the judge) and understand why Trump has really rather blown it with this interview.
The key exchange of the interview
As Mediaite reported, Welker grilled Trump on January 6, drilling down on whom Trump had listened to as he pressed the Big Lie:
“The most senior lawyers in your own administration and on your campaign told you that after you lost more than 60 legal challenges that it was over,” Welker said. “Why did you ignore them and decide to listen to a new outside group of attorneys?”
“Because I didn’t respect them,” Trump answered.
Welker pointed out, “You hired them.”
“You get a recommendation,” Trump replied. “They turn out to be RINOs, or they turn out to be not so good. In many cases, I didn’t respect them, but I did respect others. I respected many others that said the election was rigged.”
Welker then asked if he had listened to outside lawyers—including Sidney Powell, whom Trump privately called crazy—who were fueling his false claims about the election because they were telling him what he wanted to hear. (You can catch this part of the interview here to get the full flavor.)
“You know who I listen to? Myself,” Trump said. “I saw what happened. I watched that election, and I thought the election was over at 10 o’clock in the evening.”
“You were listening to your instincts,” Welker said, confirming.
“My instincts are a big part of it. That’s been the thing that’s gotten me to where I am, my instincts. But I also listen to people. There are many lawyers. I could give you many books. There are books that are written on how the election was rigged.”
Welker saw an opening, and she pressed him on it, flattering him a bit about his own intuition. “Just to be clear, were you listening to your lawyers’ advice, or were you listening to your own instincts?” Welker asked. She also asked him, rather rhetorically, if he was “calling the shots” on claiming the 2020 election was “rigged,” perhaps betting that his ego would brook no contrary response.
Then she hit paydirt.
“Oh, sure. It was my decision,” Trump said.
My guess is that those last four words are going to back to haunt him. Let’s see why that is.
Advice of counsel defense
An argument that you aren’t guilty because you were merely following the advice of your lawyers isn’t a strong one to begin with, but it’s available in certain limited circumstances. As the good folks at Lawfare noted, “As a general matter, the advice-of-counsel defense is viable in circumstances in which a defendant's good-faith reliance on the advice of a lawyer effectively negates the element of mens rea.”
This is a rather lawyerly way of saying that defendants sometimes argue that they didn’t have any guilty intent because they were simply following the advice of their trusted lawyers. It’s the lawyers who led them astray!
Courts considering an advice of counsel defense often cite the test in a case delightfully known as Beech-Nut, which itself analyzed and cited the Supreme Court’s approval of advice of counsel jury instructions. Under this case, courts generally require three things of the defendant to make the advice of counsel defense stick:
(1) that he sought the advice of counsel honestly and in good faith prior to committing any crimes;
(2) that he fully and honestly placed all of the facts before his counsel; and
(3) that he followed his counsel’s advice in good faith and honestly believed it to be correct and intended that his actions be lawful.
There’s an additional requirement, set out in an opinion called U.S. v. West in the D.C. Circuit (where the case is being tried) that the counsel not be a co-conspirator with the defendant.
Trump’s big blunder
Trump’s confession on Meet the Press gets him into a mess with his own defense rather quickly. As Supreme Court litigator Neal Katyal put it to MSNBC’s Jen Psaki,
Donald Trump’s defense to January 6 has been one basic thing, which is, “I relied on the advice of my lawyers. I didn’t have bad criminal intent. It’s my lawyers who were telling me to do this.” And she got him, through masterful interviewing and playing to his ego, to say, “Oh, no, I did it all myself.”
And if you’re Jack Smith this morning, you’re going, “Thank you, that’s what I always thought, and yes, you hired these kind of cockamamie crazy lawyers, but at the end of the day, this was you, through and through.” This demonstrates his culpability right there and then, and I think makes this case that Judge Chutkan has going to trial on March 4 a lot easier.
You can see why this is when you line up what he said against two of the required elements, numbers (1) and (3), for advice of counsel.
Factor (1) requires that Trump sought the advice of counsel honestly and in good faith prior to committing any crimes. Yet the lawyers he surrounded himself were “Team Crazy”—John Eastman, Rudy Giuliani, Jeffrey Clark and Sidney Powell—while those he shunned were the “Team Normal” White House lawyers like Pat Cipollone and Eric Herschmann. Trump knew and even privately admitted that people like Sidney Powell were crazy, so it will be hard for him to show that he sought her advice honestly and good faith.
Further, the record shows that Trump and his advisors, such as Steve Bannon and Roger Stone, had been planning to claim election fraud long before the election even happened. It’s all on tape. Thus, the conspiracy to defraud the American people began long before Trump sought the advice of counsel to “prove” there was fraud.
What Trump confirmed in this interview was that he made the claim of a stolen election based on his own instincts, which were “a big part of it,” and from watching the election with his own eyes—not from the advice of his lawyers. We knew this to be the case, but Trump said it out loud in the interview.
Factor (3) requires that Trump prove he followed his counsel’s advice in good faith and honestly believed it to be correct and intended that his actions be lawful. But here, he has stated precisely the opposite. He made it clear that it was his decision to make, and that he wasn’t somehow helplessly following the advice of his lawyers because he didn’t know any better.
For this defense, it won’t matter if he “honestly believed it to be correct,” because he wasn’t even doing any of the following. He was leading the charge: “You know who I listen to? Myself.”
Finally, we all know that Jack Smith has named nearly all of Team Crazy as co-conspirators and likely future defendants. Because they were all in on the conspiracy with Trump to spread the Big Lie and overturn the results of the election, Trump won’t be able to prevail on an advice of counsel defense for the separate and independent reason that you can’t point to your lawyer co-conspirators for cover.
One further note
One more thing about that interview. Not only does Trump appear to eviscerate his own advice of counsel defense, but he also sheds light on another alleged crime: Deprivation of Civil Rights.
Remember that one of the thrusts of the D.C. charges is that Trump conspired to prevent the counting of millions of largely African American votes in places like Milwaukee, Detroit and Philadelphia by launching baseless and false election fraud claims. A key component of that plan was for Trump to call for the halting of vote counting before many of those votes had been tabulated. This would take advantage of the so-called “Red Mirage” that resulted from GOP voters’ Election Day ballots, mostly from more rural areas, being counted long before Democratic mail-in ballots or massive numbers of ballots from large urban centers with big minority populations.
Trump now claims he “thought the election was over at 10 o’clock in the evening.” He asserts this even though his own campaign officials told him on Election Night that this was just not so, there were millions of votes still to be counted.
Trump deliberately ignored all of them and listened instead to Rudy Giuliani, who was allegedly drunk and advising him to declare victory prematurely. As Mother Jones reported, this advice was consistent with a memo that Trump had received from Judicial Watch’s Tom Fitton earlier that day, and further consistent with the plan to claim victory anyway, one that Steve Bannon and Roger Stone had boasted about on tape. Trump’s story that he actually believed the election was over by 10 pm will be weighed against all this evidence by the jury, who will see that Trump’s is just another revisionist, convenient and premeditated false claim.
The more Trump talks, the more the walls of his legal case close in. If he keeps boxing himself in like this, there might be few defenses remaining for him to cling to come the trial, now set for March 4, 2024.