- Hush-money prosecutors want to know early if Trump plans to use an advice-of-counsel defense.
- They want a Manhattan judge to make Trump reveal any such plan six weeks before his March 25 trial.
- Trump’s lawyers pushed back Thursday, noting NY law does not require he tip his hand pre-trial.
Donald Trump’s hush-money prosecutors have asked a Manhattan judge to force him to reveal by February 12 whether he’ll mount an advice-of-counsel defense when the case goes to trial six weeks later.
In such a defense, Trump would claim to jurors that he can’t be held responsible for allegedly falsifying business documents to hide a 2016 hush-money payment to porn actress Stormy Daniels — because he was acting on legal advice.
Trump has repeatedly said in court filings and public statements that he is blameless in what he’s called the “Stormy nonsense” because he placed “full Reliance on the JUDGEMENT & ADVICE OF COUNCIL [sic],” as he put it in a social media post a year ago.
Ordering Trump to give advance notice of an advice-of-counsel defense “will avoid the risk of significant trial disruption,” lead prosecutor Matthew Colangelo wrote to Manhattan Supreme Court Justice Juan Merchan.
Prosecutors additionally want Merchan to order Trump to “produce all discoverable communications related to that defense,” including those between Trump and any relevant attorneys, by the same February 12 deadline.
But in a response filed on Thursday, Trump’s lawyers said he wants to wait until other pretrial motions are decided before he’ll formally disclose if he’ll seek an advice-of-counsel defense.
“Despite the People’s suggestions to the contrary, President Trump has not indicated that he will assert an advice-of-counsel defense,” his lawyers, Susan Necheles and Todd Blanche, said in Thursday’s filing.
They also argued that New York law and legal precedent do not require he tip his hand, pre-trial, on an advice-of-counsel defense.
State trial-procedure laws only require defendants to give advance notice of an insanity defense, an alibi defense, and defenses for certain offenses involving computers.
Trump would be willing to provide prosecutors with notice of his intent to assert an advice-of-counsel defense two weeks before the March 25 trial date, assuming Merchan rules on pre-trial motions by March 4, his lawyers wrote Thursday.
In their own filing, prosecutors complained that Trump has shown confusion around an advice-of-counsel defense, at one point last month naming six lawyers he plans to call as witnesses only to later remove them from his list.
They say a February 12 deadline would give them the necessary time to prepare and serve any trial subpoenas that may be required to investigate Trump’s blame-the-lawyers defense.
They also note that “Just last month, the federal court presiding over this defendant’s criminal prosecution in the District of Columbia entered an order directing defendants to ‘provide formal notice whether he intends to assert an advice-of-counsel defense’ seven weeks before the start of trial in that case.”
Trump has been ordered to return to court on the hush-money case on February 15. The judge has said that on that date, he’ll issue decisions on pretrial motions and confirm or move the trial date.
Trump pleaded not guilty in April to 34 felony counts of falsifying business records.
Prosecutors allege the records were falsified to hide a secret $130,000 payment that silenced Daniels just days before the 2016 election, thereby improperly influencing the election’s outcome.
The charge carries a potential sentence of anywhere from zero to four years in prison.
