The “advice of counsel” defense posits that if you received and accepted reasonable legal advice, you might not have had the requisite intent for certain crimes.
Whatever the shortcomings in Kristen Welker’s “Meet the Press” interview, it did provide Trump with the opportunity to disarm one of his defenses to the indictments regarding Jan. 6, 2021. Welker asked, “The most senior lawyers in your own administration and in your campaign told you that after you lost more than 60 legal challenges that it was over. Why did you ignore them and decide to listen to a new outside group of attorneys?” He responded that he didn’t “respect them.” He explained, “You know who I listen to? Myself. I saw what happened, I watched that election, and I thought the election was over at 10 o’clock in the evening. My instincts are a big part of it. That’s been the thing that’s gotten me to where I am — my instincts.”
Just to make sure everyone understood he wasn’t blaming the lawyers, he reiterated, “It was my decision. I listened to some people.”
His attorneys might now be barred from even raising the defense. Prosecutors in Georgia state court and in federal court in D.C. will argue that when the client expressly disclaims following lawyers’ advice, they cannot tell a jury they were following their lawyers’ counsel. Unless his lawyers are willing to put Trump on the stand to explain his interview answers (which would open him to devastating cross-examination and waive his Fifth Amendment rights), the advice of counsel defense might be gone for good.
In addition, Trump’s co-defendants’ failing efforts to move the Georgia case to federal court have done Trump no favors. Former White House chief of staff Mark Meadows implicated Trump in the phony-elector plot, acknowledged he had no evidence of fraud and conceded at least some of these activities were campaign-related (which would obliterate an immunity defense for him and Trump).
Former Justice Department official Jeffrey Clark didn’t help matters either in his written declaration (which the judge refused to accept because a defendant must testify or provide other admissible evidence to justify removal). The Post reported that Clark’s attorney argued at the removal hearing that others in the administration said Clark was “acting outside of his lane” but that Trump “put it in his lane.” Clark also claims that he sent letters to Georgia and other state officials “only after he was pressed to do so by then-President Donald Trump.” This also undercuts any Trump defense that he was acting at the behest of lawyers.
Trump also appears to have dug his own legal grave in the Mar-a-Lago indictment involving the Espionage Act…