Special counsel Jack Smith, in a motion filed this week, asked a federal judge to order Donald Trump to provide formal notice of whether he intends to employ advice of counsel as a defense ahead of trial in his federal election interference case, signaling it's time for the former president "to put up or shut up," according to University of Michigan law professor Barbara McQuade, a former U.S. attorney. Smith explains in the motion that Trump and his lawyers have “repeatedly and publicly” stated an intent to use that defense and argues that the Dec. 18 exhibit list deadline should also be when Trump's legal team declares their trial plan.
In an analysis for MSNBC, McQuade asserts the importance of Smith's request because Trump's suggested defense would trigger a waiver of attorney-client privilege for him and require him to produce all documents connected to the advice. Using advice of counsel — also known as an affirmative defense — in this case would allow Trump to say he committed the alleged election fraud but assert his innocence on the grounds that he was only acting in good faith on the advice of lawyers. If successful, Smith's motion would force the former president to decide whether he will use that defense at trial or protect every document and communication sent between him and Sidney Powell, John Eastman, Rudy Giuliani and his other attorneys.
"Disclosure of those materials between Trump and his lawyers could be explosive because they may not only debunk the advice of counsel defense, but could contain other admissions that Smith could use at trial," McQuade writes, adding later, "Regardless of whether Smith’s motion succeeds, at some point Trump will have to decide whether asserting what may be a flimsy defense is worth sharing his trove of secrets."
