Opinion Jack Smith and Fani Willis have a secret weapon: Donald Trump
The “advice of counsel” defense posits that if you received and accepted reasonable legal advice, you might not have had the requisite intent for certain crimes.
Whatever the shortcomings in Kristen Welker’s “Meet the Press” interview, it did provide Trump with the opportunity to disarm one of his defenses to the indictments regarding Jan. 6, 2021. Welker asked, “The most senior lawyers in your own administration and in your campaign told you that after you lost more than 60 legal challenges that it was over. Why did you ignore them and decide to listen to a new outside group of attorneys?” He responded that he didn’t “respect them.” He explained, “You know who I listen to? Myself. I saw what happened, I watched that election, and I thought the election was over at 10 o’clock in the evening. My instincts are a big part of it. That’s been the thing that’s gotten me to where I am — my instincts.”
Just to make sure everyone understood he wasn’t blaming the lawyers, he reiterated, “It was my decision. I listened to some people.”
His attorneys might now be barred from even raising the defense. Prosecutors in Georgia state court and in federal court in D.C. will argue that when the client expressly disclaims following lawyers’ advice, they cannot tell a jury they were following their lawyers’ counsel. Unless his lawyers are willing to put Trump on the stand to explain his interview answers (which would open him to devastating cross-examination and waive his Fifth Amendment rights), the advice of counsel defense might be gone for good.
In addition, Trump’s co-defendants’ failing efforts to move the Georgia case to federal court have done Trump no favors. Former White House chief of staff Mark Meadows implicated Trump in the phony-elector plot, acknowledged he had no evidence of fraud and conceded at least some of these activities were campaign-related (which would obliterate an immunity defense for him and Trump).
Former Justice Department official Jeffrey Clark didn’t help matters either in his written declaration (which the judge refused to accept because a defendant must testify or provide other admissible evidence to justify removal). The Post reported that Clark’s attorney argued at the removal hearing that others in the administration said Clark was “acting outside of his lane” but that Trump “put it in his lane.” Clark also claims that he sent letters to Georgia and other state officials “only after he was pressed to do so by then-President Donald Trump.” This also undercuts any Trump defense that he was acting at the behest of lawyers.
Trump also appears to have dug his own legal grave in the Mar-a-Lago indictment involving the Espionage Act and obstruction (e.g., the audio recording of him bragging about possessing Iran war plans, a “reckless” Jan. 6, 2021, tweet about Vice President Mike Pence). Trump routinely makes declarations that affirm he consciously withheld documents from the government, indicating that he believes himself infallible and revealing his gross misunderstanding of the Constitution. (He’s wrongfully insisted he had the “right” to do what he wanted and that the Presidential Records Act permitted him to defy demands to return the documents.)
ABC News reported, “One of former president Donald Trump’s long-time assistants told federal investigators that Trump repeatedly wrote to-do lists for her on documents from the White House that were marked classified, according to sources familiar with her statements.” (Writing a to-do list on a classified document would be peak Trump conduct.)
The report continued: “The aide, Molly Michael, told investigators that — more than once — she received requests or taskings from Trump that were written on the back of notecards, and she later recognized those notecards as sensitive White House materials — with visible classification markings — used to brief Trump while he was still in office about phone calls with foreign leaders or other international-related matters.”
Worse still: “After Trump heard the FBI wanted to interview Michael last year, Trump allegedly told her, ‘You don’t know anything about the boxes.’” It sure sounds like Trump was obstructing the investigation and/or encouraging her to lie:
As Trump continued to claim that there were no more boxes, Michael even pointed out to him that many people, including maintenance workers, knew otherwise because they had all seen that there were many more than 15 boxes, sources said she told investigators.Smith's indictment against Trump alleges that Trump asked one of his attorneys at the time, "Wouldn't it be better if we just told them we don't have anything here?"Speaking later with investigators, Michael said she believed early on that claims of no more boxes from Trump were “easily” disproven, and she believed Trump knew they were false because he knew the contents of those boxes better than anyone else — and because he had previously seen a photograph of the storage room with all 90 or so boxes in it, ABC News was told.
Let’s count the ways in which this might be damaging. First and foremost, it can negate the notion that Trump didn’t know what was in the boxes. Second, that he was worried and allegedly encouraged Michael to lie indicates that he did not believe he truly had a right to the documents or that he had declassified them. If Michael is credible and supported by other witnesses, Trump’s “to-do” list and his conversations will be powerful evidence in the documents case.
Trump’s statements and the testimony of his co-defendants point in one direction: He engaged in conduct outside presidential powers and disregarded or overrode advice of counsel. Meanwhile, his notes, statements affirming his willful retention of documents and the testimony of an aide shore up evidence of willful intent and obstruction of justice.
Bottom line: Trump and his cohorts’ arrogance have made prosecutors’ cases all the more compelling.
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