Well this is going to ruin the rest of Trump’s week. And those to come I’m sure. Trump was probably having mixed feelings about having gotten a delay on motion hearings in the January 6 case in DC. I’m sure you’re aware of his legendary tactic (too often successful) of delay, delay and delay some more. Judge Chutkan did grant Team Trump a delay, but not nearly as much of one as they asked for. Still, it was progress and Trump might have been thinking maybe he was starting to “get to her” and making her back down.
He’s not feeling that way now. I chose the title picture for a reason because as ridiculous (and scared) as Trump looks trying to catch an underhand toss of a baseball (like one would throw to a five year old when teaching them to play catch) judge Chutkan just tossed a legal grenade to Trump. I ran across this article from The Inquisitor. It notes the Trump tactics I described as well as his penchant for ignoring gag orders and whatnot, and the need for a judge who will run a tight ship in court. Who will not only be in charge but make sure Trump knows HE won’t get away with stunts. It goes on to say:
“Judge Chutkan will require Trump to disclose by Jan. 15 whether he intends to use an ‘advice of counsel’ defense in his Washington, D.C. trial — and to provide relevant documentation of that defense at the same time,” Politico’s Kyle Cheney wrote on Twitter, praising the Judge’s stance.
This is a big deal because Trump has signaled he’s wanting to try and use an “advice of counsel” defense, in effect claiming “I only did what my lawyers told me was okay or was legal.” Much is made of Prosecutors having to hand over all their evidence so defendants can prepare for trial so there will be no surprises. The defense has no such obligation unless they intend to employ an “affirmative defense” which means they are going to put on their own case offering a different narrative. Basically, when the defense is going to argue at trial “No, the prosecution has it all wrong, THIS is what happened” then they aren’t allowed last minute surprises either. They have to provide evidence to support the theory they will advance, what witnesses they intend to call and so on.
What this means in practice is that if Trump wants to argue he relied on “good faith” advice from his lawyers judge Chutkan’s order says he’s going to have to prove he “made full disclosure of all material facts to his attorney before receiving the advice.” It gets worse for Trump:
Judge Chutkan adds that if Trump asserts that defense, he must renounce attorney-client privilege and provide the court with any documents and evidence relating to his allegation, even any that contradict his claims.
Uh Oh. An awful lot of Trump lawyers are in legal hot water already. Facing disbarment, criminal charges themselves or both. By now any lawyer who has worked or is working for Trump knows he’ll throw them under the bus to have his own fat ass in a heartbeat. The thought of handing over notes and records (among other information) on advice they gave to help Trump pull off his failed coup is NOT something they want to have happen.
That’s why this order is getting praise from legal experts. It’s going to put not just Trump but his lawyers on the spot. The spot being the pointy end of a red-hot poker, one of those pikes the notorious Vlad the Impaler was known to use on his victims. Legal analyst Harry Litman put it well:
“Very good development. Trump has to put up or shut up on this well in advance,” constitutional law professor and former Deputy Asst. Attorney General Harry Litman wrote about the order on Twitter. “Short point is that he doesn’t have the legal basis for asserting advice of counsel– and he’d have to waive privilege–so getting it out in the open early will preempt them from pulling fast ones,” Litman added.
Professor of Law and former U.S. Attorney Joyce Vance says Trump would face a “heavy lift” using such a defense because a defendant can’t rely on (blame someone else) advice from co-conspirators even if they’re lawyers. She goes on to add that if the judge rules against him Trump can’t mention it at trial.
If I was one of Trump’s lawyers I’d want one of those blast suits bomb disposal experts wear when examining/diffusing a bomb during consultations with Trump about this. He’s not going to take this well. Like I said, he didn’t get anywhere near the length of delay he wanted in the recent “good news” about delaying some of the pretrial motion stuff but was probably feeling he was making progress. Judge Chutkan has just slammed the door on that, and I for one think her Jan. 15 deadline on this is set in stone.
Trump will will freak the hell out over this. The fireworks we’re about to see should make for one helluva show so stay tuned.
“Well…pete…everybody knows a human being will cast about in a time of stress.” George Clooney in O Brother Where Art Thou?
Giggle. Chortle. Loud rude belly laugh.
He did it to himself.
given trumps aversion to having anyone around him taking notes on anything I doubt he would even have documentation to support such a defense though some people like Clark and chesbro wrote briefs in support of their suggestions. I believe those were all shot down as being unconstitutional and or illegal.