Prosecutors ask if Trump will blame lawyers as defense

Federal prosecutors asked a judge on Tuesday to force former President Donald Trump to tell them months before he goes to trial on charges of seeking to overturn the 2020 election whether he intends to defend himself by blaming the stable of lawyers around him at the time for giving him poor legal advice.

In a motion filed to the judge, Tanya Chutkan, the prosecutors sought an order that would compel Trump to tell them by Dec. 18 if he plans to pursue the blame-the-lawyers strategy known as an advice of counsel defense at his federal election interference trial, which is now set to begin in March in U.S. District Court in Washington.

Both Trump and his current team of lawyers have repeatedly and publicly announced that they were going to use such arguments as central component of his defense,prosecutors told Chutkan in their filing.

They said they wanted a formal order forcing Trump to tell them his plans by mid-december áááto prevent disruption of the pretrial schedule and delay of the trial.

The early notification could also give prosecutors a tactical edge in the case. Defendants who pursue advice of counsel arguments waive the shield of attorney-client privilege that would normally protect their dealings with their lawyers.

And, as prosecutors reminded Chutkan, if Trump heads in this direction, he would have to give them not only all of the communications or evidenc concerning the lawyers he plans to use as part of his defense, but also give any otherwise-privileged communications that might be used to undermine his claims.

Lawyers have been at the heart of the election interference case almost from the moment prosecutors first began issuing grand jury subpoenas to witnesses in the spring of 2022.

Many of the subpoenas sought information about lawyers like John Eastman and Kenneth Chesebro, who entered Trump orbit around the time of the election and were instrumental in advising him about a scheme to create false slates of electors that declared him the winner of key swing states that had actually been won by his opponent, Joe Biden.

The subpoenas also sought information about other lawyers, like Jenna Ellis and Rudy Giuliani, who had not only advised Trump on the false elector plan, but had helped him advance claims that the election had been marred by widespread fraud.

Moreover, lawyers from both Trump administration and his presidential campaign proved to be key witnesses in the investigation that began under the Justice Department and then was handed off to prosecutors who were working for special counsel Jack Smith.

And when charges were finally filed against Trump, accusing him of three overlapping conspiracies to remain in power despite the will of the voters, the indictment identified six unnamed co-conspirators most, if not all, of whom were lawyers as well.

In their motion to Chutkan, prosecutors noted that at least 25 witnesses in their sprawling investigation had withheld information based on assertions of attorney-client privilege.

Those people, the prosecutors said, included Trumpááás co-conspirators, some of his former campaign employees, some outside attorneys and even a family member of the defendant,who was not further identified.

While prosecutors that they were not entirely sure if Trump intended to raise an advice of counsel defense or whether he was even legally entitled to do so they did take note of the public statements that he and his current legal team have made suggesting that such arguments might be used at trial.

The prosecutors pointed out that three days after Trump was arraigned in the case, one of his lawyers, John F. Lauro, made the rounds of the Sunday TV news shows, describing how Trump had been charged for following legal advice from Eastman, whom he described as an esteemed scholar.

Weeks later, in an online interview with former Fox News host Tucker Carlson, prosecutors said, Trump himself made similar claims. In their filing, they wrote that Trump claimed he had some lawyers who had advised him that a particular course of action described in the indictment was appropriate.

In a separate filing Tuesday, prosecutors sought to get a jump on what is certain to be the difficult process of picking a jury for the trial.

Citing Trump’s continued use of social media as a weapon of intimidation, an issue that has come up in the government request for a gag order to be placed on the former president, the prosecutors asked Chutkan to impose restrictions on information about potential jurors and those who are ultimately picked to serve.

The prosecutors asked that no one involved in the case be allowed to publicly disclose information about the jurors gleaned during the selection process, in order to protect them from intimidation and fear.

They also asked Chutkan to consider arranging for jurors to gain discreet entry into and out of the courthouse once the trial begins.