Legal experts closely following defendant Donald Trump’s myriad of criminal and civil trials are praising U.S. District Judge Tanya Chukan’s order on Wednesday requiring the ex-president to prove the basis for the defense he has claimed he is expecting to use in the prosecution against him for allegedly attempting to overturn the 2020 election.
“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 reports.
Trump is expected to allege he cannot be guilty of the crimes he is charged with because he acted on the “good faith” advice of his attorneys. He would have to have “made full disclosure of all material facts to his attorney before receiving the advice,” according to Chutkan’s Wednesday opinion and order.
Judge Chutkan adds that if he does invoke that defense, Trump must waive attorney-client privilege and provide the court with all documents and evidence related to his claim, even any that undermine his assertions.
READ MORE: Fox News Host After GOP Losses: ‘What’s Most Important? Republicans Taking Over’
“Very good development,” writes constitutional law professor and former Deputy Asst. Attorney General Harry Litman. “Trump has to put up or shut up on this well in advance.”
“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 also writes.
Joyce Vance, also a professor of law and former U.S. Attorney says, “Trump will have a heavy lift convincing the Judge to permit him to use an advice of counsel defense at trial, among other things because you can’t rely on the advice of your co-conspirators, even if they’re lawyers. If the Judge rules against him, it can’t be mentioned at trial.”