Judge Chutkan Strikes Blow Against Donald Trump

The federal judge overseeing Donald Trump's election interference case in Washington has ordered the former president to declare whether he intends to use an advice-of-counsel defense ahead of his trial—which could mean that Trump has to hand over his private messages with lawyers to prosecutors.

The former president was indicted on four counts in August for allegedly working to overturn the results of the 2020 election in the run-up to the violent January 6, 2021, riot at the U.S. Capitol. He 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 Trump is facing as he campaigns to retake the White House in 2024. He has also pleaded not guilty to charges in the other cases.

An advice-of-counsel defense applies when a person has gone to a lawyer, disclosed all material facts, and then relied in good faith on the lawyer's advice that no laws were being broken.

Prosecutors asked U.S. District Judge Tanya Chutkan to order that Trump provide notice of his intent to assert an advice-of-counsel defense by December 18.

In the motion, they argued that "waiting until the eve of trial" to "raise an advice-of-counsel defense risks causing substantial disruption and delay." The trial is scheduled to begin on March 4, 2024.

By invoking an advice of counsel defense, Trump would waive attorney-client privilege for all communications concerning that defense. That would mean the government is "entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing."

In a three-page ruling on Wednesday, Chutkan said Trump must say whether he intends to use the defense no later than January 15. If he does, Trump must also provide prosecutors with all relevant documents by that date.

"As he has consented to do, Defendant shall provide formal notice whether he intends to assert an advice-of-counsel defense by January 15, 2024," Chutkan wrote in the ruling.

"If Defendant does provide affirmative notice of that intent, he must also provide the required discovery to the government at that time: 'any communications or evidence [Defendant] intend[s] to use to establish the defense,' and 'otherwise-privileged communications that [Defendant does] not intend to use at trial, but that are relevant to proving or undermining the advice-of-counsel defense . . . in their entirety.'"

Trump's lawyers have said that the former president had relied on advice from John Eastman, a conservative attorney who was indicted alongside Trump and 17 others in Georgia over their efforts to overturn Trump's election loss in the state.

Trump was indicted in Washington for "following legal advice from an esteemed legal scholar, John Eastman," his lawyer, John Lauro, told NBC's Meet the Press in August.

Newsweek has contacted Trump's attorney for comment via email..