DOJ Says Trump May Lose Attorney-Client Privilege in His Defense Strategy

DOJ Says Trump May Lose Attorney-Client Privilege in His Defense Strategy
Republican presidential candidate former President Donald Trump delivers remarks in Wolfeboro, N.H., on Oct. 9, 2023. (Scott Eisen/Getty Images)

Special counsel Jack Smith’s office filed two motions on Tuesday, in which it pressed for the defense’s legal strategy, and asked the court to potentially hide juror identities from former President Donald Trump in the federal criminal case against him in Washington alleging he illegally interfered with the 2020 elections. The filings note that the defense has opposed both motions.

The prosecutors argue that President Trump has talked publicly about using an advice-of-counsel defense, which would allow him to say that he was acting on the legal advice of attorneys when he challenged the 2020 election results. If the former president uses such a defense, however, “he waives attorney-client privilege for all communications concerning that defense,” the filing reads.

That would mean additional evidence available to the prosecutors, so the government is asking that President Trump declare to the court now if he means to pursue this legal strategy, so that the evidence can be shared with the prosecutors before the trial.

“Presumably he would try to rely on, for example, the ‘very detailed memorandum from a constitutional expert’ his counsel described in an interview, and therefore would need to identify that document on his exhibit list,” the filing reads.

The prosecutors also note that while investigating the case, 25 witnesses withheld information and evidence under attorney-client privilege “where the privilege holder appears to be the defendant or his 2020 presidential campaign.”

“These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant,” the filing reads. Presumably some of these communications would become available to the prosecutors if President Trump moves forward with this defense and the judge requires it.

However, this waiving attorney-client privilege would hurt several of President Trump’s co-defendants in another case.

In Georgia, President Trump was separately indicted in state court for challenging the 2020 elections; similar to the federal case, the charges involve conspiracy and allege he acted illegally to knowingly overturn accurate results.

Several of his 18 c0-defendants were attorneys retained by or associated with him: former federal prosecutor Sidney Powell, former New York Mayor Rudy Giuliani, and attorneys Kenneth Chesebro, John Eastman, Jenna Ellis, Ray Smith, and Robert Cheeley.

Attorney Emails, Memos Would Become Evidence

Mr. Chesebro and Ms. Powell are the only two defendants to have demanded a speedy trial, and will be tried together in less than two weeks. In pre-trial motions, Mr. Chesebro, who was retained by the Trump campaign, has been fighting to keep his emails private.

The Fulton County prosecutors have entered five of Mr. Chesebro’s emails into evidence, including one that had been leaked to the press, that outline several legal paths and outcomes President Trump could use to challenge the election in states where he suspected fraud.

The Fulton County co-defendants were charged with racketeering under the state’s Racketeer Influenced and Corrupt Organizations Act, and the indictment lists 161 acts of racketeering. Many of the acts naming the attorneys are the sending of emails, legal memos, and attending meetings with their client.

On Tuesday, Fulton County District Attorney Fani Willis argued that the emails Mr. Chesebro refers to are not legal advice protected by attorney-client privilege, but political acts and advice admissible as evidence in court.

Should the emails be deemed inadmissible by the Fulton County Superior Court, the prosecutors could be left with a thin case, as most of the acts involving the attorneys have to do with these communications they argue are protected by attorney-client privilege.

If the federal district court in Washington accepts the communications as evidence, it is likely the Fulton County prosecutors will make arguments to do the same, or be able to rely on any presented evidence as it is made public.

One of Mr. Chesebro’s emails, the one leaked to the press, has already been used against attorney Mr. Eastman in trial as he faces disbarment in California.

Juror Identities

Also on Tuesday, the federal prosecutors filed a motion to keep President Trump from looking up potential jurors’ social media, citing a post he made last week while attending his civil fraud trial in New York. He had named the judge’s clerk and shared her social media account, which the prosecutors cited as an example of “cause for concern about what he may do with social media research on potential jurors in this case.”

The government is proposing that jurors be pre-screened through a questionnaire, which would reveal the identities of the jurors before the in-person selection, and asked the court for additional restrictions to keep the jurors’ identities private.

It’s standard practice to do social media research, but the prosecutors argue that President Trump has a history of “using social media to attack others” and so certain restrictions should be in place to prevent this.

“The parties should thus be precluded, during jury selection and trial, from asking to ‘follow’ or ‘friend’ anyone, or make any analogous affirmative request, to gain access to posts or profiles that are not otherwise publicly available,” the filing reads, suggesting penalties should be in place if President Trump reveals the identities of any jurors or potential jurors to the public.

They note that juror identities were also kept from President Trump in the civil case against him earlier this year, brought by writer E. Jean Carroll in New York. The Fulton County court has also ordered that juror identities be kept secret, though several media outlets had argued to have them made public.

From The Epoch Times

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