{"id":2097023,"date":"2023-11-13T10:37:02","date_gmt":"2023-11-13T15:37:02","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trumps-court-ordered-pretrial-defense-disclosure-is-unwarranted-but-not-apocalyptic\/"},"modified":"2023-11-13T10:44:23","modified_gmt":"2023-11-13T15:44:23","slug":"trumps-court-ordered-pretrial-defense-disclosure-is-unwarranted-but-not-apocalyptic","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trumps-court-ordered-pretrial-defense-disclosure-is-unwarranted-but-not-apocalyptic\/","title":{"rendered":"Trump&#8217;s pretrial defense disclosure, while unnecessary, is not catastrophic."},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">18<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Ftrumps-court-ordered-pretrial-defense-disclosure-is-unwarranted-but-not-apocalyptic%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=2097023&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div class=\"article-content\">\n<h2 class=\"wp-block-heading\">Court Orders \u2063Trump to Disclose Defense Strategy<\/h2>\n<blockquote>\n<p>This week, the D.C.\u200d federal court \u2062presiding over the \u20642020 election case against former President Trump granted, in part, a motion by the special prosecutor\u2019s team asking the \u200bcourt to require Trump to disclose \u2062in\u2064 advance\u200d of trial if he intends to use an \u201cadvice of counsel\u201d defense. The premise for the charges, in this case, \u200bis that Trump\u200b \u201cknew\u201d\u2064 he had \u200blost the 2020 election, so the \u201cadvice of counsel\u201d defense is key to proving his beliefs about the \u200dlegality of \u2062any action he and his\u2063 lawyers took \u2062in response to\u2062 election results.<\/p>\n<\/blockquote>\n<p>The prosecutor sought\u200b these\u2063 disclosures about\u2064 the\u200b defense\u2019s game plan \u2063by Dec. 18, 2023 \u2014 almost three months in advance of the March 4, 2024 trial date, but such disclosures by the defense are not required by the federal \u200brules of criminal\u200c procedure. This is simply another effort by the special prosecutor\u2019s team to gain all the information \u200dand tactical advantages it can before trial.<\/p>\n<div class=\"fdrlst__b89e9-paragraph-2-long d-flex justify-content-center\" style=\"margin-left: auto; margin-right: auto; text-align: center; \" id=\"fdrlst__b89e9-2055147975\">\n<div id=\"div-gpt-ad-1379703300879-0\" class=\"mb-30\"><\/div>\n<\/div>\n<div class=\"fdrlst__b89e9-e87160053c7acce3f18066876a1fcb6b fdrlst__b89e9-paragraph-2\" id=\"fdrlst__b89e9-e87160053c7acce3f18066876a1fcb6b\"><\/div>\n<p>In response, Trump\u2019s attorneys offered to give \u2064notice of whether the defense team will \u2063assert an \u201cadvice of counsel\u201d defense by Jan. 15, 2024, but sought to delay the factual disclosures until after the court had a chance to consider the \u2063<a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/heres-a-play-by-play-of-the-special-counsel-criminal-case-heading-into-week-two\/\" title=\"Here\u2019s A Play-By-Play Of The Special Counsel Criminal Case Heading Into Week Two\">proposed jury instructions<\/a> the parties submitted.<\/p>\n<p>The court essentially \u201csplit \u2063the baby\u201d between these requests, ordering Trump to\u200d provide both notice of whether he will raise an \u201cadvice of counsel\u201d defense <em>and<\/em> any related\u2062 factual disclosures on Jan. 15. Specifically, the defense must \u2064disclose any communications or evidence it intends to use to establish\u2063 the \u201cadvice of counsel\u201d\u2063 defense, \u2064and any privileged communications \u200bit does not intend to use at trial, but which are relevant to proving or undermining the \u201cadvice of counsel\u201d defense.<\/p>\n<p>The <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/attorney-client-privilege-federal-prosecutors-for-sdny-working-to-seize-rudy-giulianis-emails\/\" title=\"\u201cAttorney-Client Privilege?\u201d \u2013 Federal Prosecutors for SDNY Working to Seize Rudy Giuliani\u2019s Emails\">attorney-client privilege<\/a> cannot be used as \u201cboth a sword and a shield,\u201d meaning the defendant can\u2019t just use the privileged materials that help him, but hide the privileged materials that cut against his position. \u200cSince an \u201cadvice of counsel\u201d defense waives\u200d the attorney-client privilege, the court is not being unfair to Trump by requiring him to disclose all of the attorney-client communications that bear on his defense. The issue is when he had to make this disclosure.<\/p>\n<p>Notwithstanding the usual overblown rhetoric in the corporate media about this ruling, it actually \u200dis not as significant as one might superficially think. In other cases, this \u200cruling could be a very big\u2062 issue but not here, although the trial judge is again applying a different standard to Trump.<\/p>\n<div class=\"fdrlst__b89e9-7029e15651d00d8c0c17ac32d88d6a23 fdrlst__b89e9-paragraph-6\" id=\"fdrlst__b89e9-7029e15651d00d8c0c17ac32d88d6a23\"><\/div>\n<h2 class=\"wp-block-heading\"><strong>The Charges Against Trump<\/strong><\/h2>\n<blockquote>\n<p>The indictment alleges that Trump \u201cspread\u200c lies\u200b that there had been <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/federal-grand-jury-indicts-trump-over-alleged-efforts-to-overturn-election\/\" title=\"Trump indicted by Federal Grand Jury for alleged election interference.\">outcome-determinative fraud<\/a> in the [2020] election and that he had actually won.\u201d It spins this basic concept out into three overlapping conspiracy charges: conspiracy to \u2064defraud the U.S., conspiracy to obstruct the Jan. 6 congressional proceeding, conspiracy\u2064 against the right to vote \u2014 \u200dand a \u200dcharge of obstructing \u200dthe \u2063certification of \u200cthe electoral vote on \u2062Jan. 6, 2021.<\/p>\n<\/blockquote>\n<p>Importantly, the indictment accuses Trump and \u200dhis alleged co-conspirators of using the \u2063following specific methods to commit these offenses:<\/p>\n<ul>\n<li>Using knowingly false claims of election fraud to get state officials to change the election results<\/li>\n<li>Organizing fraudulent slates of \u2062electors<\/li>\n<li>Attempting to use the Justice Department to conduct sham investigations\u2062 and send a\u2062 letter to states falsely claiming DOJ had identified significant concerns with the election<\/li>\n<li>Attempting to\u200c enlist then-Vice President Pence to stymie the Jan. 6 congressional proceeding and, on the morning of Jan. 6, directing Trump\u2019s supporters to the Capitol to obstruct Congress<\/li>\n<li>Exploiting the disruption of the Jan. 6 proceeding by again falsely claiming election fraud and trying to convince\u200b members of Congress to further delay proceedings<\/li>\n<\/ul>\n<h2 class=\"wp-block-heading\">\u2018Unlawful Means\u2019 to\u2064 Challenge Election Results<\/h2>\n<p>Trump\u2019s fundamental\u200c defense is that he instead genuinely believed he had won the election. \u200bHis counsel, John \u200dLauro, \u2063has said: \u201cTrump believed\u2064 in his heart of hearts \u2063that he had won that election, and as any American citizen, he had a right to speak out under the \u200cFirst \u2064Amendment.\u201d Lauro \u200ccontends that the prosecution \u2062will \u2063never be able \u201cto prove beyond \u2063a reasonable\u200b doubt that President Trump did \u2063not believe\u2063 that \u200dhe won the election.\u201d<\/p>\n<p>But \u2062the criminal charges\u200d don\u2019t turn simply on whether Trump believed he had won or lost the election.\u200b And the legal advice he received is\u2064 largely irrelevant to this issue. If Trump\u2019s lawyers told him that they thought he had \u2062won, or that they had uncovered evidence of voter fraud, that would be relevant to Trump\u2019s state of mind, but it wouldn\u2019t be legal advice.<\/p>\n<div class=\"fdrlst__b89e9-b433f7105b51aac0bb774865a2be2b1e fdrlst__b89e9-paragraph-10\" id=\"fdrlst__b89e9-b433f7105b51aac0bb774865a2be2b1e\"><\/div>\n<p>Instead,\u2062 the \u201cadvice of counsel\u201d Trump received is relevant to this case because the government alleges that, even\u2062 if Trump believed he had won, he is guilty if he and \u200chis alleged co-conspirators used <em>unlawful means<\/em> in seeking to reverse the\u200b election results. The legal advice that Trump received is highly relevant \u2062to his\u200b beliefs <em>about the legality\u2063 <\/em>of the actions that he and his supporters took.<\/p>\n<p>Lauro has said that Trump, in part, acted\u2064 on the advice of John Eastman,\u200c an \u201cesteemed constitutional scholar\u201d\u200d who drew up a number of options for challenging the \u200belection results \u2014 including sending \u200ca slate of alternate \u2063electors and petitioning the vice president to pause the electoral count. Similarly, \u200bthe proposed Justice \u2064Department letter was \u200cthe\u200c brainchild of Jeffrey Clark, a senior Justice Department official who met repeatedly with Trump after the election. All of which \u200cbrings us to the current motion filed\u2063 by the special prosecutor.<\/p>\n<h2 class=\"wp-block-heading\"><strong>A Defendant\u2019s Obligation to Disclose His Defense to Prosecutors<\/strong><\/h2>\n<p>In a federal criminal case, a defendant almost never has to disclose his defense to the government or the court in advance of trial. If the defendant requests pre-trial discovery from the government\u200d (which happens 99.9 percent of the \u200btime), the defense has a reciprocal obligation to disclose only three categories of evidence that it \u200cplans to use at trial: photos, documents, or objects; medical\u200d or scientific test results; \u2062and any expert witnesses, along with\u200d the opinions they will offer, the bases for those opinions, and the witness\u2019s qualifications as an expert. But the overall\u2064 defense, and other evidence in support of it, do not have to be disclosed.<\/p>\n<p>Further, \u200cthe Federal Rules of Criminal Procedure require pretrial disclosure\u200c of only three defenses: insanity, alibi, and public-authority (i.e., the defendant believed a law\u200b enforcement or <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trumps-court-ordered-pretrial-defense-disclosure-is-unwarranted-but-not-apocalyptic\/\" title=\"Trump's pretrial defense disclosure, while unnecessary, is not catastrophic.\">federal intelligence agency authorized<\/a> his conduct). These defenses must be disclosed pretrial because it takes \u200ctime\u200b to prepare a proper response to them, and\u200b the defenses are based on facts and\u200c circumstances other than those that make up the charged offense. For example, the government must \u200dtrack down unknown witnesses that might contradict an alibi, or \u200bit must hire a psychiatrist to evaluate a defendant\u2019s sanity. So rather\u200c than delaying a trial that is already underway while the government\u2062 gathers its evidence, the rules require pretrial \u2062disclosure of these defenses.<\/p>\n<p>The rules do not impose any \u2063disclosure obligation for an \u201cadvice of counsel\u201d defense. Nor does the same rationale for early disclosure apply to this defense. \u2064The\u200b prosecution doesn\u2019t need time to go out and\u2062 locate rebuttal witnesses or \u2062experts to counter an \u201cadvice of counsel\u201d defense. It\u200c can\u2019t bring in its own expert to say the\u2063 legal advice was faulty. Whether the legal advice at issue is objectively correct\u200c or not doesn\u2019t matter.<\/p>\n<p>And the facts and circumstances concerning \u200dTrump\u2019s advice of counsel defense are already well known to the government. Indeed, the special prosecutor investigated them and alleges\u2062 that Eastman, Clark, and Rudy Giuliani are unindicted co-conspirators. \u2064The advice that they gave Trump is no mystery, although the special prosecutor may \u2064not yet have been\u200c able to obtain all of the details.<\/p>\n<h2 class=\"wp-block-heading\"><strong>The Special Prosecutor\u2019s Motion<\/strong><\/h2>\n<p>With\u200c no law or rule mandating disclosure in this case, the\u200d special prosecutor asked the court to order disclosure based on its \u201cinherent authority.\u201d\u2064 Some federal \u2064courts have accepted this argument and ordered a defendant to \u200bdisclose\u200d an \u201cadvice of counsel\u201d\u2064 defense before trial, but others have \u2064not. The prosecutors offered two reasons why the court should order disclosure: fairness and efficiency. Neither argument is compelling here, and requiring the disclosure\u2062 runs counter\u2064 to the ordinary practice \u200din criminal cases and\u2062 does not fall within the\u2062 rationale for exceptions to that ordinary practice.<\/p>\n<p>The federal rules provide for far less pretrial disclosure in criminal cases \u200dthan in civil cases. It \u200dis ironic to see a prosecutor, \u200crather than the defendant, demanding greater disclosure than the rules require by invoking \u201cfairness.\u201d That argument \u200cseldom works\u200d for defense counsel seeking to\u200d obtain additional disclosure from prosecutors. It would not be unfair to refuse the special prosecutor additional discovery beyond the limits of the governing \u2063rules and tell him that he\u2019d just have to deal with the details of \u2063the \u200dadvice of counsel\u2063 defense as it emerges\u2062 at trial. Courts routinely deliver\u2062 this message to criminal defendants.<\/p>\n<p>Moreover, the prosecution does not need a formal notice about the \u201cadvice of counsel\u201d defense. It already \u2064knows Trump will offer an \u201cadvice of counsel\u201d defense. Further, the government does not really need further factual disclosures from Trump \u2063to\u2064 understand this defense. The nature \u200cof \u200dthe defense is already known, and\u2063 the scheduling order already requires disclosure of defense exhibits supporting this \u2063defense\u2064 by Dec. 18. In\u2063 reality, the special prosecutor\u2019s motion is totally unnecessary.<\/p>\n<p>The special prosecutor argued, however, that pretrial disclosure of the \u201cadvice of counsel\u201d materials would \u201cprevent disruption of the\u200c pretrial schedule and delay of the\u200c trial.\u201d This is poppycock. The \u2062prosecutor already has investigated and analyzed Trump\u2019s \u201cadvice of \u200dcounsel\u201d defense thoroughly and developed his arguments against \u200cit. This is obvious from \u200cthe indictment. \u2062Whatever additional details may emerge during trial wouldn\u2019t afford a\u200b legitimate basis to interrupt or \u200ddelay the trial.<\/p>\n<p>The real issue here for the special prosecutor is that \u200d25 witnesses withheld information from them during \u2064the government\u2019s investigation based\u200b on Trump\u2019s \u2064<a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/7-things-the-house-oversight-committee-should-ask-irs-whistleblowers\/\" title=\"7 Key Questions for IRS Whistleblowers by House Oversight Committee\">attorney-client \u200dprivilege<\/a>. The special prosecutor\u2062 wants\u2064 to know what those witnesses \u200bhave to say before the trial begins. The motion whines\u200b that the special prosecutor might be \u2064\u201csandbagged\u201d by their testimony at trial, especially if he were to call one \u200cof these\u2062 25\u2062 persons as a prosecution witness. This argument is \u2064totally unpersuasive.<\/p>\n<p>Most of the evidence relating to Trump\u2019s \u201cadvice of counsel\u201d defense has been publicly disclosed long \u2063ago, if nothing else \u2063through the testimony provided to the congressional Jan. 6\u2063 Committee in its interviews of witnesses who were present at \u2064the time the advice was provided or\u200b to whom \u2062it was repeated. \u200dMoreover, defense \u200blawyers encounter this situation in\u2064 every\u2063 trial where \u2063government witnesses testify to\u200c details \u2064that are not spelled out in the indictment or provided in discovery.<\/p>\n<p>No new bombshells are \u200clikely to emerge as a result of whatever additional disclosures are made pursuant\u2063 to the court\u2019s order. Instead, this \u2062motion is really about \u200bthe special prosecutor being \u2063anal-retentive and digging for every scrap of information he \u200ccan obtain before\u200d the trial begins, with the assistance of\u2062 the trial court, which \u2063has set an unreasonably early trial date in this case and is willing to accept the government\u2019s bogus argument that \u200cpretrial disclosure of Trump\u2019s defenses \u200cwill promote \u201cefficiency.\u201d<\/p>\n<hr class=\"wp-block-separator\">\n<\/div>\n<p> <\/p>\n<h2> How does the court&#8217;s ruling on disclosing defense strategy and \u200cevidence impact Trump&#8217;s ability\u2064 to assert an &#8220;advice \u2063of\u2062 counsel&#8221; defense?<\/h2>\n<p><span>  T the election. The charges focus on \u200cTrump&#8217;s actions and tactics to challenge the election results, which the \u2063prosecutor argues were unlawful. This \u2062brings into question the validity of an &#8220;advice of counsel&#8221; defense.<\/p>\n<p>The\u2062 &#8220;advice of counsel&#8221; defense asserts that the\u2064 defendant, in this case Trump, relied \u200con the \u2063advice and guidance of\u200c his legal counsel\u200c when\u2064 taking certain actions. It suggests that\u200c Trump \u2062acted in accordance with legal advice\u2064 and believed his\u2063 actions were\u200d lawful. However, for this defense to be\u2063 valid,\u200c Trump must disclose any relevant communications or evidence that support his claim.<\/p>\n<p>The court&#8217;s decision to\u200c require \u200cTrump\u200d to disclose his defense strategy in advance of the trial has sparked debate and controversy. Trump&#8217;s attorneys offered a compromise by agreeing to provide notice of whether the defense team will\u2062 assert an &#8220;advice of counsel&#8221; defense by \u2064January 15, 2024. However, they \u2063requested a delay \u2063in disclosing factual \u200cevidence until after the court had reviewed the proposed jury instructions.<\/p>\n<p>The court&#8217;s ruling strikes a balance between\u2063 these requests. \u200cIt\u200b orders Trump to provide both notice of his defense strategy and \u200cany \u2062related factual disclosures by January \u206215. This\u2062 includes disclosing any communications or evidence that establish the &#8220;advice of counsel&#8221; defense and any privileged communication\u200b that is relevant to proving or undermining\u200b the defense. The court argues \u2063that the attorney-client privilege cannot \u2064be selectively used, meaning Trump cannot cherry-pick privileged materials to support his position while hiding those that \u2063might\u200c contradict it.<\/p>\n<p>While there \u200chas been sensationalized media coverage of this ruling, it\u200d is\u200b not as significant as\u2064 it may initially\u200b seem. In other cases, such a\u2062 ruling could have major\u200d implications, but in this specific case, it does not carry the \u2064same weight. Nevertheless, the fact that the trial judge is applying a different standard \u200bto Trump raises some \u2063concerns.<\/p>\n<p>Moving beyond the court&#8217;s decision, it is crucial to understand the charges against Trump. \u200dThe indictment accuses him of spreading lies \u2064about election fraud and falsely claiming that\u200b he had won the 2020 election. It further alleges three conspiracy charges: conspiracy \u2063to defraud the U.S., conspiracy to\u2064 obstruct the Jan. 6 congressional proceeding, and \u200cconspiracy \u2063against the right to vote. Additionally, Trump is charged \u200dwith obstructing the certification of the electoral vote on \u2062Jan. \u20626, 2021.<\/p>\n<p>The indictment \u200boutlines specific methods used by Trump and \u2062his alleged co-conspirators to commit these offenses. These methods include \u2062using\u2062 false claims of election fraud to pressure state \u2063officials, organizing fraudulent slates \u200cof electors, attempting to involve the Justice Department<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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\u2019s team asking the court to require Trump to disclose in advance of trial if he intends to use an \u201cadvice of counsel\u201d defense. The premise for the charges, in this<\/p>\n","protected":false},"author":2513,"featured_media":2097024,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","fifu_image_alt":"","footnotes":""},"categories":[546],"tags":[],"class_list":["post-2097023","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-the-federalist"],"fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2097023","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/2513"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2097023"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2097023\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2097024"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2097023"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2097023"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2097023"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}