Trump Telegraphs Plans To Blame His Lawyers For Coup Plot (Above the Law blog, August 1, 2023)

Is Herr TRUMP waiving his rights to attorney-client privilege and work product doctrine protection?  While one federal court has already held the crime-fraud-tort exception to privilege applies, TRUMP's public statements remove any arguable shred of privilege.  

What did those alleged six-conspirators say?

From Above the Law blog: 

x

Trump Telegraphs Plans To Blame His Lawyers For Coup Plot 

Is there a German word for this? Rechtsanwaltunterbuserrung? 

By LIZ DYE  

onAugust 1, 2023 at 3:15 PM

It was always going to be this way.

Donald Trump was always going to wind up blaming the lawyers.

He previewed this legal strategy the other day on his crappy Twitter knockoff site when he rebuked the “Fake News” for reporting that another indictment was imminent, this time in the January 6 investigation:

My attorneys had a productive meeting with the DOJ this morning, explaining in detail that I did nothing wrong, was advised by many lawyers, and that an Indictment of me would only further destroy our Country. No indication of notice was given during the meeting — Do not trust the Fake News on anything!

Later Trump confirmed the reporting, screeching into the ether, “I assume that an Indictment from Deranged Jack Smith and his highly partisan gang of Thugs, pertaining to my ‘PEACEFULLY & PATRIOTICALLY Speech, will be coming out any day now, as yet another attempt to cover up all of the bad news about bribes, payoffs, and extortion, coming from the Biden ‘camp.’” But at the time of the original post, attorney Jeremy Turk joked on Twitter that FPOTUS Galaxy Brain had just waived privilege with regard to his communications with his attorneys by asserting an advice of counsel defense.

Take it away, Rolling Stone:

Trump is on the cusp of being indicted over Jan. 6 and its surrounding events, and if the case goes to trial, his current legal team is preparing an “advice of counsel” argument, attempting to pull blame away from the former president for any possible illegal activity. Plans for such a defense have been percolating since last year, the two sources say.

Several lawyers in Trump’s ever-shifting legal orbit spent time both this and last year quietly studying past high-profile cases involving this particular line of defense. The attorneys tried to game out how such an argument would fare in front of a judge or a jury.

Trump plans to claim that he only tried to overthrow the government because Rudy Giuliani, Sidney Powell, John Eastman, and the rest of the weirdos he surrounded himself with said it was very cool and very legal. Because who wouldn’t be led astray by a guy leaking hair dye, a woman ranting about dead Hugo Chávez, and a lawyer who bombed out of traffic court swearing that the vice president has the unilateral authority to toss out electoral votes?

As Robert J. Anello and Richard F. Albert of Morvillo Abramowitz Grand Iason & Anello PC put it in the New York Law Journal, the advice of counsel defense hinges on the defendant’s state of mind. Citing United States v. Scully, 877 F.3d 464 (2d Cir. 2017) they wrote:

The court explained that “[i]n a fraud case … the advice-of-counsel defense is not an affirmative defense that defeats liability even if the jury accepts the government’s allegations as true.” Rather, evidence of advice of counsel can raise reasonable doubt as to whether the government proved the requisite element of unlawful intent. Thus, once facts exist in the record providing a sufficient foundation, a trial court must give an advice of counsel instruction that advises the jury clearly that the burden to prove unlawful intent beyond a reasonable doubt at all times remains with the government.

“It is an argument the [former] president likes, and the team is on board with it,” a Trump adviser told reporters Adam Rawnsley and Asawin Suebsaeng, adding: “John and Rudy  gave a lot of counsel … Other people can decide how sound it was.”

Trump’s defense may be complicated by the fact that every “normal” lawyer in his orbit told him that what Eastman, Giuliani, Powell, and Jeff “We’ll Call You If There’s an Oil Spill” Clark were proposing was wildly illegal. It’s a bit of stretch to say that you reasonably relied on the guy ranting in a landscaper’s parking lot who’d already gotten his rear end handed to him when he tried it in court over the advice of White House Counsel Pat Cipollone and acting AG Jeff Rosen. There’s also the minor matter that an advice of counsel defense will likely require Trump to both waive privilege and testify — both of which he’s been loathe to do.

But letting his advisors take the fall for his own screw-ups seems totally on brand.

Ask not for whom the bus rolls, Rudy! It rolls for thee.

Trump’s Plan to Save Himself: Scapegoat His Coup Lawyers [Rolling Stone]
My Lawyer Said It Was OK: ‘Scully’ and Defending Based on Reliance on Counsel [New York Law Journal]

---

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.