On Nov. 8, U.S. District Court Judge Tanya Chutkan ordered former President Donald Trump to provide an explanation about his possible use of counsel in one of two criminal cases that special counsel Jack Smith is prosecuting.
Prosecutors filed a motion on Oct. 10 asking him to reveal whether or not he intends to use the defense, arguing that doing so would constitute a waiver of the attorney-client privilege for all communications.
“Yes [the] The defendant provides affirmative notice of such intent, he must also provide the required discovery to the government,” Judge Chutkan wrote in his new order.
In order for President Trump to use these privileged communications as a defense in court, Judge Chutkan has ordered their release to the government no later than January 15, 2024.
The judge stated in her opinion annexed to the order that this deadline aims to maintain the trajectory of the case towards the trial date of March 4, 2024. She has declined to reschedule on multiple occasions.
Former President Trump has entered a not guilty plea to four counts of interfering with the 2020 election. Donald Trump legally challenged the results of the election, as Democratic presidential candidates have done in previous elections.
Prosecutors expect President Trump to claim that his 2020 election challenge was based on the advice of his lawyers.
In one case, a legal memorandum written by attorney Kenneth Chesebro on behalf of the Trump Organization laid out possible legal courses of action to challenge the election results. These courses of action involved petitioning the US Supreme Court and postponing the certification of the vote to January 6, 2021.
In a comparable legal proceeding in Georgia, Chesebro, along with President Trump, faced charges implicating the former president and eighteen others in a so-called “racketeering conspiracy.”
Subsequently, Mr. Chesebro entered into a plea agreement in which he pleaded guilty to a single count of conspiracy to file fraudulent documents. In exchange for his testimony against the remaining defendants and a fine, the deal dropped six additional felonies and spared him jail time.
Leaks and subsequent court filings have provided public access to correspondence between Chesebro and the Trump campaign.
Judge Chutkan ruled, citing precedent, that to establish the advice-of-counsel defense, a defendant must present proof that he “made a full disclosure of all material facts to his counsel prior to receiving the advice in matter” and that he “relied in good faith”. on counsel’s advice that his course of action was lawful.”
This development would entail the waiver of attorney-client privilege and the mandatory submission of these communications to the courts.
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