Former President Donald Trump is set to defend himself in his upcoming New York hush money trial by asserting that he is innocent of any wrongdoing. His argument is based on the claim that lawyers were involved in the alleged misconduct that led to his indictment. This information was disclosed in a filing that was made public on Tuesday.
According to NBC News, the former president’s attorneys stated in the filing that a key part of his defense will be arguing that he did not have the necessary intent to commit the actions described in the indictment.
President Trump’s lawyers have stated that he aims to gather evidence regarding the presence, involvement, and guidance of lawyers in the events that led to the charges mentioned in the Indictment. However, they clarified that he does not plan to assert a formal advice-of-counsel defense.
In response to presiding Judge Juan Merchan’s order, the filing was made to inform the Manhattan district attorney’s office this week about their intention to use the advice-of-counsel defense, which Trump had previously stated he would employ. NBC News reported that the district attorney’s office requested this notice in order to obtain more information about Trump’s communication with his attorneys.
According to Bennett Gershman, a law professor at Pace University and former New York prosecutor, the idea that Trump is suggesting – that having lawyers representing him means he is incapable of committing crimes – is “illogical, nonsensical, and laughable.”
According to the analyst, it is not entirely clear what Trump is trying to argue. He questions whether Trump is suggesting that his involvement with lawyers somehow exempts him from breaking the law. This argument is deemed nonsensical and does not follow logical reasoning. The analyst further wonders which lawyers Trump is referring to and why their presence would prevent him from engaging in criminal activities.
According to Gregory Germain, a professor of law at Syracuse University, Bragg’s case against Trump is rather unusual. This is because the former president is being accused of attempting to conceal a crime, rather than being directly charged with the crime itself.
According to the speaker, the District Attorney possesses compelling evidence indicating that Trump attempted to conceal the payment. The main weakness in the case lies in determining whether the motive behind the cover-up was to hide a campaign finance crime or to evade personal or political embarrassment, rather than to conceal a crime. This aspect will be a significant challenge for prosecutors to address during the trial.
Prosecutors from Bragg’s office have accused Trump of falsifying the records pertaining to his payments to Cohen. As per Politico, the prosecution has put forth two out of three theories to establish an underlying crime and support the felony charges. These theories argue that the hush money payments made to Daniels by Trump violate federal and state election laws, thereby constituting an illegal contribution to his campaign. Additionally, the third theory suggests that Trump intended to breach New York tax law by manipulating the reimbursement to Cohen to falsely impact its tax consequences.
According to Germain, Trump was undoubtedly conscious of the fact that he was concealing the payments in a complex manner. Regardless of whether his lawyers advised him on this arrangement or not, it doesn’t alter the fact that he was aware it was an attempt to hide the truth. However, it’s important to note that concealing a payment believed to be legal is not necessarily an illegal act.
According to the expert, the effectiveness of the advice-of-counsel defense hinges on the defendant’s knowledge and intentions.
According to Gershman, a formal advice-of-counsel defense aims to demonstrate the defendant’s innocence by asserting that they received legal advice and acted in good faith based on that advice. Trump would need to provide evidence that he disclosed his actions to his lawyers, sought their advice, was informed that his conduct was legal, and then acted in good faith on that guidance.
According to Stephen Gillers, a law professor at New York University, in order to raise the defense, the former president and his lawyers will need to testify about the advice they received and demonstrate that they relied on it (Salon).
According to Gillers, if Trump wants to share advice or guidance he received from his lawyers, he would need to waive his attorney-client privilege. This means that the lawyers who provided the advice could be called as witnesses and questioned about their communications with Trump. They may also be asked to provide any relevant documents or research that informed their advice.
In their recent filing on Tuesday, Trump’s legal team stated that they intend to question former Trump attorney Michael Cohen and other individuals who were involved in the discussions with Stormy Daniels regarding President Trump’s awareness of his counsel’s involvement. However, they clarified that since they are not relying on a formal advice-of-counsel defense, they are not obligated to present additional evidence to Manhattan District Attorney Alvin Bragg.
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According to Gillers, the decision to invoke the Fifth Amendment by Trump and his lawyers may be seen as an effort to avoid testifying at the trial. However, Gillers believes that this strategy will not be successful. He argues that for Trump to raise this defense, he would need to take the stand unless the judge allows the defense to be presented solely through the testimony of his lawyers, which is unlikely.
According to legal experts, if Trump decides to release his attorney-client privilege, his lawyer would have to face rigorous cross-examination and potentially embarrassing subpoenas.
According to Gershman, Germain, and Gillers, the defense filing by the Trump legal team is deemed to be inconsequential. They all agree that this argument holds no relevance, and Gershman goes as far as stating that Trump has absolutely no chance of testifying himself.
It is uncertain how Judge Merchan will respond to the claim, which is described as “bizarre,” according to the statement.
According to Germain, Trump may have the opportunity to present his argument to the jury, but it is unlikely to be very convincing. This is because the judge does not have much to consider or rule on regarding this matter.
According to Germain, Trump is seeking to present an argument that he did not previously assert. He explains that courts are typically open to allowing amendments to pleadings, so the judge will likely permit Trump to make his argument. However, this does not prevent the case from progressing further.
