(Photo by Evan Vucci-Pool/Getty Images)
On Monday, Donald Trump announced his intention to assert an advice-of-counsel defense in the false business records case. Sort of.
Forced to disclose whether he intends to blame his lawyers for covering up a hush money payoff to pornstar Stormy Daniels through a series of checks to Michael Cohen denominated as legal fees, Trump punted.
“President Donald J. Trump respectfully submits notice concerning his intent to rely on the defense of advice-of-counsel at trial,” his lawyers wrote, hastily adding that “there is a marked difference between the commonly referred to ‘advice-of-counsel’ defense and the defense that President Trump expects to raise at trial.”
Their theory seems to be that Trump doesn’t have to waive attorney-client privilege as he normally would if he were planning to blame his lawyers for leading him down the garden path. Instead he will prove that he “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.” This seems to amount to Trump claiming that no attorney explicitly said it was legal, but since lawyers prepared the documents, he assumed the deal was kosher.
It’s more of a “lawyer-in-the-room” defense, really.
The plan appears to be to get Michael Cohen to testify as to Trump’s subjective understanding of the reimbursement plot. His current counsel argues that Trump only agreed to disguise the $130,000 Daniels payout as legal fees because of “the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment.”
Leave aside for the moment that Cohen just got through testifying in the civil fraud trial that Trump talks like a gangster, making his lackeys do the dirty work through code words understood by everyone in his orbit. And, yes, Trump just argued that Cohen is a perjurer and all that testimony should be disregarded in its entirety. But never mind that now, because Cohen is totally going to save Trump’s bacon!
And, no, Trump will not be taking questions because “there is no basis for the People to demand a preview of our defenses at trial”
To a casual observer this might seem like having his cake and eating it, too. Trump is demanding to blame his lawyers for his crimes, without actually saying whether they told him the scheme was legal. It is, as they say, a bold strategy, Cotton.
Let’s see whether it pays off with Justice Juan Merchan.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.