The Week Ahead

January 14, 2024

This week kicks off with the Iowa caucuses on Monday. Politics aside, it’s the start of an inevitable round of demands by the former president to delay his court cases until after the election. While most judges are likely to reject the absolute notion that Trump can’t be tried until it’s over because he’s running for office, the question is how judges will react to specific requests for delays because of a primary or an event on a set date. Even these sorts of smallish delays can have a cascading effect. And at least one Judge, Aileen Cannon in the classified documents case, may be more sympathetic overall.

For someone who denies any wrongdoing and has repeatedly said the charges against him are a political witch hunt, Trump is in no hurry to have his day in court so a jury can clear his name.

Mar-a-Lago

Late last week, Judge Cannon ruled against Special Counsel Jack Smith’s request to force Trump to disclose whether he intends to rely on an advice of counsel defense. That is a defense that says, “I can’t be guilty because I was entitled to rely on the advice my lawyer gave me.” Good faith reliance on the advice of counsel is one way a defendant can prevent the government from proving a defendant acted willfully or with intent.

In the Mar-a-Lago case, Smith wants to know whether Trump will argue that one or more of his lawyers told him he was entitled to keep the classified documents in his possession. Trump has suggested in the past that he would. But Judge Cannon ruled that Smith’s request was premature and declined to force Trump to provide the government with discovery in this regard, at least for now.

This case is still set for trial on May 20. Despite that, the Judge wrote, “Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice-of-counsel trial defense, the Court determines that such a request is not amenable to proper consideration at this juncture, prior to at least partial resolution of pre-trial motions, transmission to Defendants of the Special Counsel’s exhibit and witness lists, and other disclosures as may become necessary,” without at least setting a target date in the near future. Instead, she denied Smith’s motion “without prejudice,” meaning that it’s up to him to come back and ask her again.

Why would Trump resist disclosing the fact that he intends to use the defense? He’s raised it frequently enough in public that there’s no surprise involved. We’ll get the answer to that in a minute, when we discuss the issue in the context of the January 6 case. But before we get there, let’s close the loop on what we can expect in the Mar-a-Lago case this week.

Judge Cannon has repeatedly rejected efforts by Smith to protect portions of his case, specifically those regarding classified material, from disclosure. But she’s slow-walked much of the rest of the case. Back in November, Judge Cannon pushed back some of the pre-trial deadlines in the case, which led to speculation the May 20 trial date wouldn’t hold up. Between now and the March 1 scheduling conference, she has to take up issues involving classified material. And this week, by Tuesday, Trump must file any motions he has to compel the receipt of discovery from Jack Smith. This is his opportunity to object to the way Smith has handled discovery and he will likely take full advantage of it—expect lots of outrage over Smith’s “failures”. When the Judge rules, and her practice seems to be brief notational “minute orders” on the docket, we may get some sense of whether the case is still on track for May.

January 6 Prosecution: Advice of Counsel

The advice of counsel defense should have surfaced in the Special Counsel’s Washington, D.C., case this week, where Trump was scheduled to notify the government of his intent to use the defense by Monday if he’s going to. That date is on hold while his immunity appeal is underway. When the case resumes, Jack Smith will likely ask for prompt rescheduling on these dates.

To successfully argue advice of counsel, a defendant must:

• disclose all of the material facts to their attorney

• have obtained advice that the specific conduct they now argue they can’t be criminally charged with was legal or appropriate

• be able to prove they relied on the advice in good faith and that they followed it

Here’s the kicker, and the reason Trump wants to delay providing notice of his intent to use the defense for as long as possible: once a defendant invokes reliance on counsel, they waive the attorney-client privilege. That means they have to disclose communications with their attorney to the government. As Judge Chutkan put it in her order, if he’s going to use the defense, Trump would have to disclose:

• all “communications or evidence” the defendant intends to rely on to establish the defense, and

• any “otherwise privileged communications” even if he doesn’t intend to use them at trial, but they are “relevant to proving or undermining” the advice of counsel defense

So, if Trump advises the government he intends to use the defense, he has to provide discovery of those materials. Judge Chutkan was very clear and specific about it in her order, providing that Trump “must also provide the required discovery to the government at that time.”

Judge Chutkan noted that the Federal Rules of Criminal Procedure don’t explicitly authorize her to require Trump to provide the government with notice of an advice of counsel defense, although waiting until trial “could cause disruption and delay.” While it’s clear that a defendant who utilizes the defense waives the privilege and must divulge the information she identified, there is a split among the trial courts that have considered the issue over whether they can force a defendant to reveal his intent to use the defense in advance of trial.

But here, the Judge explained she did not have to resolve the issue, because Trump had already agreed to provide notice regarding the defense to the government at the same time jury instructions were due.

Trump asked the court not to make him turn over discovery immediately, though. He wanted the court to “solicit briefing to determine a reasonable schedule” for that disclosure. Judge Chutkan cut that off, noting Trump had cited no precedent for the delay and that it “runs contrary to the standard practice of requiring that disclosure accompany notice, since that notice waives attorney-client privilege.” She pointed out that absent the disclosure of previously privileged material a defendant is required to make once he announces he intends to rely on advice of counsel, merely giving notice would have little value for pre-trial preparation.

At trial, it’s up to the jury to decide whether the evidence shows that a defendant followed legal advice in good faith. Here, where Trump is charged with obstructing the investigation in addition to possession of the materials, I’ll be very interested to see what an advice of counsel defense looks like. “My attorney told me it was okay to lie when I received the subpoena and remove documents before he came by to review what I had,” doesn’t seem like a possibility.

E. Jean Carroll, Round “II”

Long-time readers of Civil Discourse know that this is really Round I, not Round II. In 2019, while Trump was still in office, longtime “Elle Magazine” advice columnist E. Jean Carroll sued Trump for defamation after he made crass remarks about her during a presidential press gaggle, saying she had lied when she wrote he’d raped her in a New York City department store in the mid-1990s. Carroll filed a second lawsuit over similar comments he made after he left the presidency. That case, Carroll II, went to trial first. E. Jean Carroll won. The jury awarded her $5 million and found that Trump had sexually assaulted her. Carroll I got tied up in the courts while Trump argued he was entitled to a presidential immunity defense. He lost that fight, and Carroll I is now ready for trial.

Because both the issues—defamation, the facts, Carroll’s allegation of rape—and the parties, Trump and Carroll, are the same in this case as they were in the earlier one, Judge Lewis Kaplan ruled that there was no need to relitigate any of them. The only issue for the jury next week is the amount of damages Trump has to pay Carroll in this case.

Trump has tried to make a to-do out of a New York law distinction. That’s the difference between rape and sexual assault. Under New York law, rape is limited to contact between a penis and a vagina. Digital penetration, which is what Carroll alleged here, is considered sexual assault under New York law. Curiously, New York follows this old fashioned view of how conduct is designated. More modern statutes do not distinguish like that, and the conduct Carroll alleged here is commonly referred to as rape in today’s world. But even the technical distinction does Trump no good. He can technically say the jury didn’t find he raped Carroll, but they still found he sexually assaulted her and they awarded her damages based on her testimony.

The Judge has already ruled that Trump cannot try to revisit previously decided issues with this jury. He cannot argue he did not rape Carroll. On Sunday, his lawyer, Alina Habba, filed a letter with the court. She suggested that Trump could testify about surrounding circumstances and argue he didn’t act with malice, the legal term used in defamation to mean knowledge or reckless disregard of falsehood, without going into areas the Judge had forbidden him to discuss, like Carroll’s past sexual history or disputing that he assaulted her.

Carroll has asked for $10 million in compensatory damages, plus punitive damages. It’s the punitive damages, meant to punish Trump for his behavior and prevent a reoccurrence, that could go sky high. Trump defamed Carroll, again, on national television during a CNN town hall right after the first verdict came down. He has continued to do so, most recently in a social media firestorm on his Truth Social website last week. Look for Carroll’s lawyers to argue for damages in an amount so high that it will be enough to make Trump stop. Depending on how the jury views the evidence, January could turn out to be a very expensive month for Trump, as Judge Arthur Engoron continues to weigh how much profit he will order Trump and the Trump Organization to disgorge in the New York civil fraud case, with his opinion due end of the month.

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There are other deadlines this week. On Tuesday, the government must respond to Hunter Biden’s pre-trial motions. Wednesday is the deadline for the superior court in Maine to weigh in on Maine Secretary of State Shenna Bellows’ decision to remove Trump from the ballot there. On Thursday, Trump’s brief, as well as any amicus in support of his position, are due in the Colorado 14th Amendment case that is currently pending before the U.S. Supreme Court. There is going to be a lot going on this week, and we’ll try to stay on top of all of it.

Meanwhile, those of you who are heading into cold weather, stay safe. It looks like much of the country is in for frigid cold, snow, and other extremes on top of the flooding and tornadoes some parts of the country experienced last week. We’ll be tucked in here at home. I’m giving the girls extra cracked corn and other treats to keep their metabolisms fired up, and the dogs are already wearing their cute little puffer jackets.

We’re in this together,

Joyce