Trump’s misleading claim about judge and ‘counsel’s advice’

Former President Donald Trump on Tuesday continued to criticize the judge who presided over his criminal trial in Manhattan, Juan Merchan. This time he complained that Merchan would not allow him to seek the advice he said he had been given by lawyers. Criminal defendants sometimes use an “advice of counsel” defense to try to show that they did not intend to break the law.

‘Here I can’t even say ‘advice of counsel’. This is new to me, ‘advice of counsel,’” Trump told reporters outside the courtroom. “If you have a lawyer and the lawyer does something or advises you about something, you say ‘counsel’s advice.’ He said you can’t say that.’

Facts first: Trump’s claim is misleading. He failed to mention that the reason Merchan won’t allow Trump’s legal team to rely on “advice of counsel” during the trial is that, when Trump was asked before the trial whether he wanted an “advice of counsel” a counselor’, he would defend himself. his lawyers told Merchan he wouldn’t do that.

A defense based on an opinion of counsel generally requires the defendant to waive attorney-client privilege. Trump’s lawyers told Merchan before the trial that instead of a “formal” defense of “advice of counsel,” Trump wanted to use a different defense in which he would not waive attorney-client privilege but still “evidence would elicit information about the presence, involvement and advice of attorneys in relevant events giving rise to the allegations in the indictment.”

Merchan rejected this proposal. He wrote in March: “Allowing the said defense in this case would, in effect, allow defendant to rely on the very defense on which he has stated he will not rely, without the attendant liabilities that associated with it. The result would undoubtedly be to confuse and mislead the jury. This Court cannot endorse such a tactic.”

Therefore, Merchan ruled that Trump could not invoke or even suggest a “presence of counsel” during the trial.

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