On “Meet the Press” last week, former President Donald Trump made a compelling case highlighting the differences between his tenure and President Joe Biden’s. He also significantly and irreparably undermined his primary defense in the four criminal cases in which he was a defendant.
This is the inside story.
Four grand juries with different jurisdictions indicted Trump on various felonies. Charges generally range from bookkeeping fraud in New York to espionage in Florida, conspiracy to block the transfer of presidential power in Washington, D.C., and conspiracy to overturn elections in Georgia.
In total, Trump is accused of committing 91 different criminal acts. He denies all charges and maintains his innocence in both cases. (Related: Judge Andrew P. Napolitano: The federal government’s appetite for surveillance is truly insatiable)
After the fourth indictment was filed last month, Trump sent John Lauro, the lead lawyer in the D.C. case, to his Sunday talk show to clarify Trump’s defense. Lauro has stated multiple times that “all of President Trump’s actions were taken with the advice of his lawyers and attorneys.” This is the so-called advice of a lawyer’s advocate. Basically, the lawyer said it was fine.
But President Trump revealed on “Meet the Press” last week that he was told by the White House legal team that he lost the election and there was insufficient evidence to challenge or overturn it. And he said he decided to ignore their advice “because I didn’t respect them.” “It was my decision,” not their decision to do what I did. ah. If he has not accepted the advice of his attorney, he cannot rely on his attorney’s advice. Either he relied on the advice of his legal team, or he didn’t. Last weekend, he contradicted his current legal team by saying otherwise.
Even if you rely on the advice of a lawyer, it is not an absolute defense and there are problems.
The Supreme Court has recognized the advice of legal counsel since a 1908 case called Williamson v. United States. There, a lawmaker was convicted of encouraging a client to commit perjury regarding documents submitted to the federal government. As is almost always the case in federal cases, prosecutors had the burden of proving intentionality and unlawful intent.
Williamson told the jury that his lawyer told him he could teach his client how to sign documents. He was convicted, and the Supreme Court reversed, finding as a matter of law that the government had failed to prove deliberate and unlawful intent.
Since this case, courts have begun to require precise evidence, usually in the form of live testimony from the lawyer who gave the advice, about the nature of the advice sought by the client and the exact advice given by the lawyer. Ta.
The crimes with which Mr. Trump is charged require the government to prove an element of intentionality, meaning that Mr. Trump knew what he was doing was wrong but still did it intentionally. Counsel’s advice does not condone or justify a crime. It challenges the government’s proof of intent.
Therefore, to invoke this defense, President Trump would need to call to the stand a lawyer who said he gave Lauro legal advice and guided his actions in the days leading up to January 6. . to those attorneys that he fully disclosed to the jury what he was about to do and that he received and accepted advice that the specific course of action he was about to take was legal. I was supposed to explain it.
But he just told a national television audience that his lawyers are “RINOs” (Republicans in Name Only) and that he has no respect for them. He did not say this about Lauro, but about an anonymous lawyer who was advising Lauro in the White House during the final months of his presidency.
He has criticized the lawyers he consulted at the White House from December 2020 to January 2021, and it will be difficult to get them to testify in his favor. And if he somehow manages to do so, the government will use the “Meet the Press” interview to impeach the credibility of the lawyer’s advocacy advice.
I’m not writing this column about President Trump getting himself into deeper legal trouble for some political purpose. I have known Mr. Trump personally for nearly 40 years and met with me numerous times during his presidency. My interest in the outcome of the 2024 presidential election is my hope that whoever is elected president will be faithful to the Constitution and respect the natural rights of all people. Sadly, no president in my lifetime has met these standards.
The purpose of this column is not to support or attack his candidacy. Rather, it is to highlight a defense that is rarely used in criminal cases.
Could the bank robber use a lawyer’s advice? He could try, but no jury would believe him because everyone knows bank robbery is a crime. However, in crimes such as bookkeeping, espionage, conspiracy, and election challenges, where the average person is unfamiliar with what the law condemns and tolerates, the advice of a defense attorney can be used to effectively determine the government’s intentions. This can reduce the burden of proof.
But it simply doesn’t work when a criminal defendant publicly rejects the lawyer he once sought advice from, accusing him of being unworthy of his respect.
Why would Donald Trump say something so detrimental to his legal interests? Why would he weaken his defense in a criminal case that exposes him to possible loss of liberty for the rest of his life? Does he know that public opinion against him as a candidate or as president cannot save him in court?? These are questions jurors may soon answer.
For more information about Judge Andrew Napolitano, please visit https://JudgeNap.com.
Copyright 2023 Andrew P. Napolitano
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