Judge Chutkan Just Shut Down Trump's 'Mischief'—Ex-Prosecutor

A federal judge has made it a lot more difficult for Donald Trump to blame his lawyers for his election-interference case, a former prosecutor has said.

Harry Litman is a law professor at the University of California and a former federal prosecutor. He said that the decision by Judge Tanya Chutkan will probably prevent Trump from starting up "a whole lot of mischief and delay."

Last week, Chutkan granted prosecutors' motion to require the former president to reveal whether he will assert an advice-of-counsel defense in the election-interference trial, which is due to begin on March 4. "If Trump intends to blame his lawyers for his efforts to overturn the 2020 election, he has to put up or shut up by Jan. 15. He is likely to shut up," Litman wrote in a column in the Los Angeles Times on Monday.

The former president was indicted on four counts in Washington D.C. for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.

It is one of four criminal cases that Trump is facing while he campaigns as frontrunner for the Republican presidential nomination. He has also pleaded not guilty to charges in the other cases and has repeatedly said that they form part of a political witch hunt. Newsweek sought email comment on Tuesday from Donald Trump's attorney.

"Trump has repeatedly suggested that he relied on his attorneys' advice in undertaking his flagrantly unconstitutional conduct after the election," Litman wrote.

"Most expressly, Trump's lawyer John Lauro claimed on 'Meet the Press' in August that what his client was 'indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman.' Lauro added that Trump was also following Eastman's advice when he 'petitioned Mike Pence' to refuse to certify Joe Biden's election," Litman added.

Litman noted that Chutkan's order prevents Trump from "ambushing the government at trial, a stunt I have seen defendants attempt more than once."

"Without advance notice, nothing would prevent Trump's lawyer from raising the claim in an opening statement or mid-trial," Litman wrote.

"Thanks to the judge's order, Trump won't be able to blame his lawyers for Jan. 6 without producing a wealth of otherwise privileged materials and taking the stand to testify to his own good faith. Rather than mount the defense the way the law requires, look for Trump to give it up entirely," Litman added.

In October, a former federal prosecutor said that Trump would have to release a potentially explosive trove of documents if he wants to assert a lawyer-advice defense.

Barbara McQuade, whom Trump sacked along with over 40 other federal prosecutors, said that Trump will have to release "every document, memo, email, text message" sent between the Republican, Rudy Giuliani and the rest of the Trump legal team.

That, in itself, could open up whole new areas of attack for Justice Department Special Counsel Jack Smith, McQuade said.

The legal professor at the University of Michigan was writing her opinion on the MSNBC website about the potential for Trump to assert that all his actions around alleged tampering with the 2020 election were on the advice of counsel.

To assert that defense, Trump would first have to show the judge, and the prosecutors, all of his communication with his lawyer about the election—potentially leading to explosive new revelations in the case, McQuade wrote.

"Disclosure of those materials between Trump and his lawyers could be explosive because they may not only debunk the advice of counsel defense, but could contain other admissions that Smith could use at trial.

"Smith's motion will push Trump to make a decision—use the advice of counsel defense at trial or protect every document, memo, email, text message sent between him and Sidney Powell, John Eastman, Rudy Giuliani and the other lawyers," McQuade wrote.