Former President Donald Trump has been ordered by a federal judge to declare whether he intends to use an advice-of-counsel defense ahead of his trial for allegedly working to overturn the results of the 2020 election. This defense could potentially result in Trump having to hand over his private messages with lawyers to prosecutors, according to a report by Newsweek.
The trial is scheduled to begin on March 4, 2024, and in a recent ruling, U.S. District Judge Tanya Chutkan ordered Trump to provide notice of his intent to assert an advice-of-counsel defense by December 18. If he does intend to use the defense, he must provide prosecutors with all relevant documents by January 15, 2024.
An advice-of-counsel defense applies when a person has gone to a lawyer, disclosed all material facts, and then relied in good faith on the lawyer’s advice that no laws were being broken. By invoking this defense, Trump would waive attorney-client privilege for all communications concerning that defense. This would entitle the government to additional discovery and may require further investigation, leading to potential further litigation and briefing.
Trump’s lawyers have said that the former president had relied on advice from John Eastman, a conservative attorney who was indicted alongside Trump and 17 others in Georgia over their efforts to overturn Trump’s election loss in the state.
The former president was indicted on four counts in August for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. He has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.
This is one of four criminal cases that Trump is facing as he campaigns to retake the White House in 2024. He has also pleaded not guilty to charges in the other cases.
Newsweek has reached out to Trump’s attorney for comment via email.