Donald Trump May Be Forced to Reveal Trial Strategy

Former President Donald Trump may be forced to reveal his trial strategy in the federal election interference case if he chooses to rely on the "advice of counsel" defense.

Special Counsel Jack Smith, the federal prosecutor charging Trump with four criminal counts related to his efforts to remain in power after losing the 2020 election, filed a motion on Tuesday asking Judge Tanya Chutkan to order that Trump file a notice should he intend to use the legal defense.

"The defendant has provided public notice that he intends to rely on an advice-of-counsel defense at trial," Smith wrote of Trump. "When a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense, and the Government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing."

Smith asked Chutkan to invoke her "inherent authority" and have Trump provide the court with a notice of his intent to assert "advice of counsel" defense by December 18, when both sides will exchange the exhibits they intend to use at trial.

Dave Aronberg, a Palm Beach County State Attorney, told Newsweek that an "advice of counsel" defense means attorney-client privilege is waived. It would also mean Trump would have to testify, according to Aronberg.

Attorney-client privilege has been central to Smith's case and at least 25 witnesses withheld information from prosecutors based on it being a privileged conversation. Trump's also alluded to using the defense at his trial.

Days after he was arraigned, John Lauro, one of Trump's attorneys, said the former president was "following legal advice" from John Eastman, one of his former attorneys. Trump also told Tucker Carlson that lawyers advised him that his actions were "appropriate."

In the court filing, Smith acknowledged that courts don't always require defendants to release their plans. However, he argued it was appropriate in this case since Trump "broadcast to the world his intent" to rely on this defense.

Smith told Chutkan that he wanted a formal order requiring Trump to release his plans to avoid "disruption of the pretrial schedule and delay of the trail." However, Smith also alluded to the fact that prosecutors might not even let Trump claim that as a defense.

The prosecutor wrote in the court filing that the defense runs contrary to the indictment, which alleges Trump ignored the advice of attorneys. Smith said that the judge might need to hold another hearing to determine if Trump should "be permitted to present evidence of the defense at trial."

Along with the advice of counsel defense, Trump could rely on his genuine belief that the election was stolen, according to Neama Rahmani, a former federal prosecutor. Rahmani said that the defense will try to dismantle the knowledge and intent requirements of the criminal statute that prosecutors must meet.

"That is why the case turns on what Trump said and what was said to him," Rahmani told Newsweek.

Trump's team has until October 20 to respond.