Attorneys for Donald Trump say they will not invoke a formal “advice of counsel” defense when the former president is put on trial later this month for allegedly falsifying business records in New York, but they signaled in a court filing on Tuesday that Trump will argue he did not intend to break the law “because of his awareness that various lawyers were involved.”
Trump’s defense team faced a deadline this week to notify the court if they planned to assert an advice of counsel defense at the trial, which is scheduled to begin March 25.
According to the filing, defense lawyers will argue that “President Trump 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.”
An advice of counsel defense would require that Trump prove he acted on the advice of lawyers — including proving he fully disclosed his actions to lawyers, asked for advice, learned his conduct was legal, and acted in good faith — when he paid adult film star Stormy Daniels $130,000 in hush money through his then-attorney, Michael Cohen, just days before the 2016 election. Prosecutors allege that Trump then falsified New York business records to cover up that alleged criminal conduct.
Prosecutors have argued that although it was a lawyer, Cohen, who coordinated the payments at the center of the case, the alleged scheme was long part of the Trump playbook to conceal potentially damaging information.
Republican presidential candidate former President Donald Trump speaks at a campaign rally, March 9, 2024, in Rome Ga.
Mike Stewart/AP
According to Tuesday’s filing, Trump’s defense lawyers want to instead argue that Trump was generally aware that lawyers were involved in the payments and lacked any intent to break the law.
“President Trump intends to elicit these facts from witnesses, including former AMI executives and Michael Cohen, whom we expect will testify about President Trump’s awareness of counsel’s involvement in the charged conduct. This is not a formal advice-of-counsel defense,” the filing said.
Defense lawyers flagged that the defense plans might change depending on who is called as a witness at trial and what evidence the judge permits.
Former President Donald Trump is facing legal challenges on multiple fronts, including a hush money trial related to payments made to adult film actress Stormy Daniels. In this case, Trump has made the decision not to use the ‘advice of counsel’ defense, but will still claim that his lawyers were involved in the decision-making process.
The ‘advice of counsel’ defense is a legal strategy where a defendant argues that they relied on the advice of their legal counsel when making decisions that led to criminal charges. By using this defense, the defendant is essentially shifting the blame onto their lawyers, claiming that they were acting in good faith based on the advice they received.
In the hush money trial, Trump has decided not to use this defense, likely because it could potentially damage his relationship with his legal team and undermine their credibility in court. However, Trump will still maintain that his lawyers were involved in the decision-making process surrounding the payments made to Stormy Daniels.
It is important to note that just because Trump is not using the ‘advice of counsel’ defense does not mean that his legal team will not play a significant role in his defense strategy. Trump’s lawyers will likely argue that the payments to Daniels were made for legitimate reasons, such as protecting Trump’s reputation or avoiding potential litigation, rather than as hush money to cover up an alleged affair.
Ultimately, the outcome of the hush money trial will depend on a variety of factors, including the strength of the evidence against Trump and the effectiveness of his legal defense. While Trump may not be using the ‘advice of counsel’ defense, his lawyers will still play a crucial role in shaping his defense strategy and advocating on his behalf in court.
