This week, the D.C. federal court presiding over the 2020 election case against former President Trump granted, in part, a motion by the special prosecutor’s team asking the court to require Trump to disclose in advance of trial if he intends to use an “advice of counsel” defense. The premise for the charges, in this case, is that Trump “knew” he had lost the 2020 election, so the “advice of counsel” defense is key to proving his beliefs about the legality of any action he and his lawyers took in response to election results.
The prosecutor sought these disclosures about the defense’s game plan by Dec. 18, 2023 — almost three months in advance of the March 4, 2024 trial date, but such disclosures by the defense are not required by the federal rules of criminal procedure. This is simply another effort by the special prosecutor’s team to gain all the information and tactical advantages it can before trial.
In response, Trump’s attorneys offered to give notice of whether the defense team will assert an “advice of counsel” defense by Jan. 15, 2024, but sought to delay the factual disclosures until after the court had a chance to consider the proposed jury instructions the parties submitted.
The court essentially “split the baby” between these requests, ordering Trump to provide both notice of whether he will raise an “advice of counsel” defense and any related factual disclosures on Jan. 15. Specifically, the defense must disclose any communications or evidence it intends
