Trump to argue he can’t be held responsible for hush money scheme because he acted on attorneys’ advice

The former president raises an advice-of-counsel defence but doesn’t want to give up attorney-client privilege

Alex Woodward
Tuesday 12 March 2024 22:32 GMT
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Donald Trump has notified the judge overseeing his imminent criminal trial in New York City that he intends to rely on a legal strategy that pins responsibility for allegedly criminal acts on the advice of his attorneys.

The former president is expected to argue, at least in part, that he can’t be held responsible for allegedly falsifying business records to conceal hush money payments to an adult film star because he was acting on the advice of his lawyers.

But the notice from his attorneys on Tuesday claims that Mr Trump won’t make a “formal” use of what is typically called an “advice-of-counsel” defence.

Mr Trump won’t assert a “formal” advice-of-counsel defence that would have forced him to give up his attorney-client privilege and require him to disclose confidential communications or other privileged materials.

Instead, his lawyers argue that the former president “lacked the requisite intent to commit the conduct charged in the Indictment because of his awareness that various lawyers were involved in the underlying conduct giving rise to the charges,” they wrote to New York Judge Juan Merchan.

He intends to “elicit these facts” from witnesses at the trial, including his former attorney Michael Cohen, “whom we expect will testify about President Trump’s awareness of counsel’s involvement in the charged conduct,” according to Mr Trump’s attorneys Todd Blanche and Susan Necheles.

There is “no basis” for prosecutors to hear Mr Trump’s defence before trial, they wrote.

On Monday, Mr Trump’s attorneys asked Judge Merchan to take the trial off the calendar until the US Supreme Court decides whether the former president can claim “immunity” from prosecution in a separate case.

Jury selection for a criminal trial on charges connected to hush money payments to Stormy Daniels ahead of the 2016 presidential election is scheduled for 25 March.

The trial is the first criminal proceeding against the former president – and the first ever against any former president – among the four criminal cases he faces in four jurisdictions.

In a filing on Monday, his attorneys argued that statements that Mr Trump made on Twitter and to news networks about his former “fixer” Michael Cohen in 2018 “implicate the concept of official acts for purposes of presidential immunity,” but the filing does not address the alleged repayment scheme that is central to the case – which took place months before Mr Trump entered the White House.

His Twitter account was “an official communications channel during his Presidency, to communicate with the public regarding matters of public concern,” according to Mr Trump’s attorneys.

Cohen is accused of arranging payments to Ms Daniels days before the 2016 election in an effort to bury potentially damaging stories of Mr Trump’s alleged affairs. After his election victory, Mr Trump then allegedly reimbursed Cohen, who is expected to say in the upcoming trial that Mr Trump authorised his business to falsely file the payments as legal expenses.

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