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Trump can’t use an “advise of counsel” because his defense said he wouldn’t

Former President Donald Trump is seen during a break in his criminal trial for allegedly covering up hush money payments at Manhattan Criminal Court in New York City on May 28.
Former President Donald Trump is seen during a break in his criminal trial for allegedly covering up hush money payments at Manhattan Criminal Court in New York City on May 28. Justin Lane/Pool/Getty Images

After closing arguments Tuesday in his criminal trial in Manhattan, former President Donald Trump posted on social media his misleading complaint that Judge Juan Merchan prevented him from pursuing a particular defense.

Trump wrote on his Truth Social platform: “THE BIGGEST CASE I HAVE EVER SEEN FOR TRUSTING THE COUNCIL, AND THE JUDGE WILL NOT LET ME, FOR ANY REASON, USE THAT AS A DEFENSE IN THIS RENEWED PROCESS. ANOTHER TERM, ADVICE FROM THE COUNCIL DEFENSE!”

Facts first: Trump’s claim remains misleading. He didn’t mention, againthat the reason Merchan will not allow Trump’s legal team to rely on “advice of counsel” during the trial is that, when Trump was asked before the trial whether he would use an “advice of counsel” a counsel’s defense, his lawyers told Merchan he wouldn’t do that.

A defense based on an opinion of counsel generally requires the defendant to waive attorney-client privilege. Trump’s lawyers told Merchan before the trial that instead of a “formal” defense of “advice of counsel,” Trump wanted to use a different defense in which he would not waive attorney-client privilege but still “evidence would elicit information about the presence, involvement and advice of attorneys in relevant events giving rise to the allegations in the indictment.”

Merchan rejected this proposal. He wrote in March: “Allowing the said defense in this case would, in effect, allow defendant to rely on the very defense on which he has stated he will not rely, without the attendant liabilities that associated with it. The result would undoubtedly be to confuse and mislead the jury. This Court cannot endorse such a tactic.” Therefore, Merchan ruled that Trump could not invoke or even suggest a “presence of counsel” during the trial.

Last week, during courtroom discussions about Merchan’s instructions to the jury, Merchan rejected an attempt by Trump’s defense to invoke the “involvement of counsel.” Merchan noted that he had already made his position on the proposal clear.

Merchan said: “This is an argument you’ve been making for many, many, many months. This is something you’ve been trying to get through to the jury for many, many, many months. It is denied, it is not. is going to happen, please don’t bring it up again.”

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