Will Trump invoke attorney advice to justify actions in classified papers case? – Sun Sentinel
On social media and on TV, when Donald Trump has discussed the classified government documents he spirited away to his Mar-a-Lago estate in Palm Beach, the former president has insisted it was his right to keep them because experts told him it was legal.
Now, federal prosecutors from the office of Special Counsel Jack Smith, which has brought 40 criminal charges against Trump for allegedly mishandling sensitive materials and obstructing justice, want to know whether his lawyers intend to mount a so-called “advice of counsel” defense at trial to justify his actions.
Such a defense involves an accused person consulting his lawyer, disclosing all of the relevant facts in the case, and then relying on that lawyer’s advice to show that no laws were broken.
Last week, the federal judge in Washington who is presiding over the government’s election interference case against Trump ordered him to declare whether he will use the advice-of-counsel defense before the trial starts early next March. Prosecutors have asked that his lawyers provide a declaration by Dec. 18.
In that case, Trump faces four counts of allegedly trying to overturn the results of the 2020 presidential election prior to the Jan. 6, 2021, riot at the U.S. Capitol building. The former president has pleaded not guilty to all the charges, which include a conspiracy to obstruct an official proceeding – the certification of Democrat Joe Biden’s victory.
In the classified documents case, which is unfolding in the Southern District of Florida in Fort Pierce, U.S. District Judge Aileen Cannon has yet to rule on the special counsel’s motion for a similar declaration. In their motion, government lawyers indicated they expected a response from the defense by Friday. As of midday, none had been filed.
“Defendant Trump … has claimed publicly that he believes that the law allows him to ‘do what I want’ with classified documents and further that he was ‘told’ legal precedent did not require him to return them,” the government said in its court filing earlier this month.
“It would require inquiry into any attorney communications on which it is based, and, under precedent in this District, would require disclosure of any such attorney-client communications,” the prosecutors said.
“In filing this motion, the Government does not concede the appropriateness or viability of an advice-of-counsel defense, or that a jury instruction will be warranted,” the government lawyers added.
They said they had conferred with Trump’s lawyers about the motion and were told that they oppose it. The filing does not say why.
The government is not making the same request of Trump’s two co-defendants, valet Waltine Nauta and Mar-a-Lago property manager Carlos De Oliveira. Neither man has made any public statements about the documents’ handling. Along with Trump, they have pleaded not guilty.
Image contained in the indictment against former President Donald Trump, shows boxes of records being stored onstage in a ballroom at Trump’s Mar-a-Lago estate in Palm Beach. Prosecutors now want to know if he intends to employ an “advice of counsel” defense to justify his possession of sensitive government materials after Trump left the White House. (Justice Department via AP)
But the government lawyers asserted that a series of Trump public statements dating back to early 2022 have given them good reason to learn whether the advice of counsel defense will be in play for Trump both before and during the trial.
Statements that helped trigger U.S. filing
According to the prosecutors’ court filing, the examples include:
- A Feb. 10, 2022, statement via the Save America political action committee where Trump said he was told “I was under no obligation to give this material based on various legal rulings that have been made over the years.” He made the statement after the National Archives and Records Administration found classified documents in 15 boxes Trump had returned to the agency in January 2022 and referred the matter to the Justice Department.
- After federal agents conducted a court-authorized search of Trump’s Mar-a-Lago club on Aug. 8, 2022, Trump, according to the government filing “invoked the purported cooperation of his attorneys to suggest the search was not justified and posted the following message on Truth Social on August 11: ‘My attorneys and representatives were cooperating fully, and very good relationships had been established. The government could have had whatever they wanted, if we had it.’”
- In a June 19, 2023, interview on Fox News, the government filing says, Trump stated: “I have every right to have those boxes, this is purely a Presidential Records Act; this is not a criminal thing.”
- In September, the government said, Trump “reiterated his assertion that his conduct was legal” by declaring: “‘I’m allowed to have these documents, I’m allowed to take these documents, classified or not classified.”
“All of these examples raise the possibility that defendant Trump will assert an advice-of-counsel defense at trial,” the prosecutors said in their filing, “necessitating the notice and discovery the Government seeks here.”
Three lawyers not involved in the case told the South Florida Sun Sentinel this week that the defense, even if it is raised, is problematic and even unlikely to fly.
“The way the defense works is you say, ‘I talked to my attorney about the actions I was planning to take and the attorney told me they were not illegal and I took those actions on the advice of counsel,’” said Fort Lauderdale attorney Richard Serafini, a former Justice Department attorney who is now in private practice. “There has to be a full disclosure to the attorney.”
“You have to waive the attorney-client privilege to do it,” he added. “But what attorney is going to come in and say, ‘Yes, [the client] gave all of the information and I got the law completely wrong?’”
Craig Trocino, associate professor of clinical education and director of the Innocence Clinic at the University of Miami School of Law, suggested an advice-of-counsel scenario in the documents case is rather farfetched.
“[Trump] would have to have taken the exact documents discussed to the attorney who presumably would have a security clearance to review the documents, and get advice in taking documents from one place to another,” he said. “I don’t know who he calls to establish that defense.”
Trocino also surmised the government might be trying to establish an argument for a gag order “or restriction on how these things are going to be discussed in public.”
Robert Jarvis, a law professor at Nova Southeastern University in Davie, said the defense would be more workable in complex litigation such as a tax case brought by the IRS.
“It’s pretty clear in the documents case that a president cannot take the documents,” Jarvis said. “I don’t think the attorneys will raise this in court.”
The government has asked Judge Cannon to set a deadline of 60 days ahead of the trial for Trump’s lawyers to provide a notice of the advice-of-counsel defense if they intend to use it.
She has set a trial date of May 20, 2024.
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