Former President Donald Trump is set to make a defense in his forthcoming New York hush money trial, claiming that he did not engage in any wrongdoing. Trump’s argument is based on the involvement of lawyers in the alleged misconduct that led to his indictment. This information was revealed in a filing that was made public on Tuesday.
According to NBC News, the attorneys representing the former president have stated in the filing that a key part of his defense will be arguing that he did not have the intention to commit the actions described in the indictment.
President Trump’s legal team has stated that their intention is to gather evidence regarding the presence, involvement, and advice provided by lawyers in the events that led to the charges mentioned in the Indictment. However, they clarify that they do not plan to assert a formal advice-of-counsel defense.
In compliance with presiding Judge Juan Merchan’s order, the Manhattan district attorney’s office was notified this week regarding the intention to utilize the advice-of-counsel defense, as previously stated by Trump. The district attorney’s office requested this notice to gain access to additional information on Trump’s correspondence with his attorneys.
According to Bennett Gershman, a law professor at Pace University and former New York prosecutor, the idea that Trump believes he cannot commit crimes because he has lawyers representing him is “illogical, nonsensical, and laughable.”
“It’s unclear what Trump is trying to argue,” he stated, while also adding, “Is he suggesting that simply because lawyers were involved, he couldn’t have violated the law? This argument doesn’t make sense. It’s illogical. Which lawyers is he referring to? And why would their presence prevent Trump from engaging in criminal activities?”
According to Gregory Germain, a law professor at Syracuse University, Bragg’s case against Trump seems rather peculiar. It is unusual because Trump is being accused of attempting to conceal a crime, yet he is not being charged with the crime itself.
According to the District Attorney, there is compelling evidence indicating that Trump attempted to conceal the payment. The main challenge for prosecutors during the trial will be addressing whether the motive behind the cover-up was to hide a campaign finance crime or to avoid personal or political embarrassment instead of concealing a crime.
According to Gershman, a formal advice-of-counsel defense is aimed at proving the defendant’s “innocence” by showing that they acted based on the advice of their lawyers. In order to raise this defense, Trump would need to demonstrate that he fully disclosed his actions to his counsel, sought their advice, was informed that his conduct was legal, and acted in good faith based 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 would need to testify about the advice they received and the extent to which they relied on it.
In their filing on Tuesday, Trump’s lawyers stated that they intend to question Michael Cohen and other individuals involved in the discussions with Stormy Daniels regarding Trump’s knowledge of his attorneys’ participation, as reported by NBC News. 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.
According to Gillers, the move by Trump and his lawyers may be an attempt to avoid testifying at trial. However, Gillers argues that this strategy is unlikely to work. Trump would need to take the stand in order to raise the defense, unless the judge allows the use of lawyers’ testimony alone, which is highly unlikely.
The attorney-client privilege would need to be waived by Trump, and the lawyer would have to endure intense and potentially embarrassing cross-examination and subpoenas.
According to legal experts Gershman, Germain, and Gillers, the defense filing by the Trump legal team is deemed as “completely irrelevant.” They all agree that there is “zero chance” of Trump actually testifying in court.
According to him, the claim is so “bizarre” that it is uncertain how Judge Merchan will react to it.
According to Germain, while Trump may have the opportunity to present his argument to the jury, it is unlikely to be highly convincing. This is because the judge doesn’t have much to consider when ruling on this particular matter.
According to Germain, Trump aims to present an argument that he hadn’t previously stated. He explains that courts are generally lenient when it comes to allowing amendments to pleadings. Therefore, it is likely that the judge will permit Trump to make this argument. However, it is important to note that this does not prevent the case from progressing further.
