MOTION for Formal Pretrial Notice of the Defendant's Intent to Rely on Advice-of-Counsel Defense by USA as to DONALD J. TRUMP. (Attachments: # (1) Text of Proposed Order)(Windom, Thomas)
Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
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CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S OPPOSED MOTION FOR FORMAL PRETRIAL NOTICE OF
THE DEFENDANT’S INTENT TO RELY ON ADVICE-OF-COUNSEL DEFENSE
The defendant has provided public notice that he intends to rely on an advice-of-counsel
defense at trial. When a defendant invokes such a defense in court, he waives attorney-client
privilege for all communications concerning that defense, and the Government is entitled to
additional discovery and may conduct further investigation, both of which may require further
litigation and briefing. To prevent disruption of the pretrial schedule and delay of the trial, the
Court should exercise its inherent authority to require the defendant to provide notice in court of
his intent to assert such a defense by the date exhibit lists are due, December 18, 2023. Through
counsel, the defendant opposes this motion.
I.
Background
During the course of the Government’s investigation, at least 25 witnesses withheld
information, communications, and documents based on assertions of the attorney-client privilege
under circumstances 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.
In the time since the grand jury returned the indictment against the defendant on August 1,
2023, the defendant and his counsel have repeatedly and publicly announced that he intends toPage 2 assert the advice of counsel as a central component of his defense at trial. On the night of August
1, for example, defense counsel told a national audience on Fox News that the defendant “had an
advice of counsel, a very detailed memorandum from a constitutional expert.” 1 Hours later on
CNN, defense counsel argued that “Mr. Trump had the advice of counsel, Mr. Eastman, who was
one of the most respected constitutional scholars in the United States, giving him advice and
guidance.” The following day defense counsel was asked on National Public Radio “to talk a little
about your legal strategy” and “give us a summary of your legal defense to these criminal
charges.” 3 Defense counsel responded, “Well, it’s not a big surprise,” and the defendant “got
advice from counsel – very, very wise and learned counsel – on a variety of constitutional and
legal issues.”
Three days after the defendant’s arraignment, defense counsel made appearances on a
circuit of Sunday news shows. On NBC, defense counsel explained that “what [the defendant]’s
being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman”
and “one thing for certain, President Trump acted under the advice of counsel when he petitioned,
under the First Amendment, petitioned Mr. Pence . . . [a]nd that’s legally protected speech.” Likewise, on CBS, defense counsel claimed that the defendant “believed” a certain course of action
described in the indictment was appropriate because he was “following the advice of John
Fox
News,
Aug.
1,
2023,
https://www.foxnews.com/video/6332255292112.
CNN,
Aug.
1,
2023,
at
https://www.youtube.com/watch?v=GW7Bixvkpc0.
at
minute
minute
3:03,
2:20,
available
available
at
at
NPR
All
Things
Considered,
Aug.
2,
2023,
available
at
https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.
Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.
-2-Page 3 Eastman.” 5 And on CNN, defense counsel argued that the conduct alleged in the indictment was
sanctioned because the defendant “was following the advice of his lawyer.” 6 Weeks later, the
defendant himself explained in a Twitter interview that “we had some lawyers, not all, we had
some lawyers that said” that a particular course of action described in the indictment was
appropriate. On August 28, 2023, the Court entered the Pretrial Order to organize pretrial proceedings.
See ECF No. 39. Among other reasoned deadlines therein, the Court set December 18, 2023, as
the date for the parties to “exchange lists of exhibits they intend to use in their cases in chief.” Id.
¶ 8. By that date, the defendant will be required to identify (and, if he has not already done so,
produce) any exhibits to be used in his case-in-chief, including ones supportive of an advice-ofcounsel defense.
II.
Applicable Law
In order to assert at trial an advice-of-counsel defense—an affirmative defense, United
States v. White, 887 F.2d 267, 270 (D.C. Cir. 1989)—the defendant will be required to “introduce[]
evidence that (1) ‘he relied in good faith on the counsel’s advice that his course of conduct was
legal,’ and (2) ‘he made full disclosure of all material facts to his attorney before receiving the
advice at issue,’” United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 2019) (quoting United
States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)). If the defendant satisfies the burden to
produce evidence that would support an advice-of-counsel defense, the Court should instruct the
Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at
https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.
CNN,
Aug.
6,
2023,
at
minute
7:58,
https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.
available
at
Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available
at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.
-3-Page 4 jury on the defense, and the Government retains the burden of proving the defendant’s mens rea
beyond a reasonable doubt. See United States v. Westbrooks, 780 F.3d 593, 596 (4th Cir. 2015)
(defendant bears burden of production while Government bears burden of proof); United States v.
Dallmann, 433 F. Supp. 3d 804, 810 (E.D. Va. 2020) (“the defendant bears the initial burden of
production, but the prosecution always retains the burden of persuasion, namely the burden of
proving the defendant’s guilty state of mind beyond a reasonable doubt”).
In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege
on all communications concerning the defense. See White, 887 F.2d at 270; United States v.
Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the
defendant must disclose to the Government (1) all “communications or evidence” the defendant
intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the
defendant does “not intend to use at trial, but that are relevant to proving or undermining” it.
Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is
for “information defendant submitted to the attorney on which the attorney’s advice is based, the
attorney’s advice relied on by the defendant, and any information that would undermine the
defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This
disclosure should include not only those documents which support [defendants’] defense, but also
all documents (including attorney-client and attorney work product documents) that might
impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y.
Jan. 18, 2018) (quoting Hatfield).
Accordingly, waiting until the eve of trial—or, worse, when jeopardy attaches—to raise an
advice-of-counsel defense risks causing substantial disruption and delay, particularly in this case
-4-Page 5 given the number of attorneys involved. To avoid such disruption, courts in this District and others
have concluded that, while the Federal Rules of Criminal Procedure do not address this defense
specifically, judges retain inherent authority to order defendants to provide formal notice of an
advice-of-counsel defense before trial. See Crowder, 325 F. Supp. 3d at 138 (“Courts have broad
discretion to impose disclosure and notice requirements outside the [Federal Rules of Criminal
Procedure].”); Rhodes, ECF No. 318 (imposing pretrial notice requirement and citing Crowder);
Dallman, 433 F. Supp. 3d at 812 (“The majority of district courts that have considered the question
have sensibly exercised their inherent authority to impose a pretrial notice and discovery
requirement regarding the advice-of-counsel defense . . . .”) (collecting cases); United States v.
Mubayyid, 2007 WL 1826067, at *2 (D. Mass. June 22, 2007) (“Upon review of the cases, the
Court concludes that it may, at least under some circumstances, order that defendant give notice
of an intent to rely on an advice-of-counsel defense.”); United States v. Cooper, 283 F. Supp. 2d
1215, 1225 (D. Kan. 2003) (ordering defendant who indicated intention to rely on advice-ofcounsel defense to provide pretrial disclosure if he intends to rely on the defense); Hatfield, WL 183522, at *13 (requiring defendants to provide pretrial notice and disclosure of advice-ofcounsel defense); Scali, 2018 WL 461441, at *8 (same and scheduling hearing on “whether the
Defendant has proffered the factual prerequisites of an advice of counsel Defense”); United States
v. Crinel, 2016 WL 6441249, at *12 (E.D. La. Nov. 1, 2016) (requiring defendant to file pretrial
motion if he wishes to assert advice-of-counsel defense); United States v. Impastato, 535 F. Supp.
2d 732, 740 (E.D. La. 2008) (same).
A number of courts, in cases unlike this one, have denied such notice. See United States
v. Ray, 2021 WL 5493839, at *4 (S.D.N.Y. Nov. 22, 2021) (declining to impose notice requirement
and collecting cases showing “no consensus among federal courts”); United States v. Wilkerson,
-5-Page 6 388 F. Supp. 3d 969, 974-75 (E.D. Tenn. 2019) (finding no good cause to compel the defendants
to provide notice before trial); United States v. Atias, 2017 WL 563978, at *4 (E.D.N.Y. Feb. 10,
2017) (concluding that prosecution in the case had not established a “right” to pretrial notice);
United States v. Meredith, 2014 WL 897373, at *1 (E.D. Ky. Mar. 6, 2014) (declining to require
notice and discovery of the defense pretrial); United States v. Lacour, 2008 WL 5191596, at *n.1 (M.D. Fla. Dec. 10, 2008) (“Defendants are not obligated to put on any defense, and, except
for certain [enumerated] defenses which must be disclosed prior to trial, Defendants are free to
make that decision at trial.”).
Those out-of-circuit cases are readily distinguishable, and the factors animating their
contrary rulings are not present here. For example, some courts have refrained from requiring
notice because it would force the defendant to reveal an intended defense before trial. See
Meredith, 2014 WL 897373, at *1 (declining to require notice of advice-of-counsel defense
because it “would require the defendant to reveal his trial strategy pretrial”); Ray, 2021 WL
5493839, at *5 (declining to require the defendant to disclose his defense). But here the defendant
has broadcast to the world his intent to rely on this defense. Another court expressed concern that
requiring the defendant to give pretrial notice would not place “reciprocal discovery” burdens on
the Government. See Wilkerson, 388 F. Supp. 3d at 973. Here, as explained below, related nonprivileged discovery in the possession of the Government already has been provided to the
defendant as part of the Government’s early and robust discovery productions. Courts have also
denied pretrial notice because the defense was unlikely to arise during the Government’s case-inchief. See Ray, 2021 WL 5493839, at *7 (“The Court need not now decide whether it has the
authority to require the defense to make an unequivocal assertion of privilege prior to the end of
the government’s case ….”). Here though, given the nature of the charges and the defense
-6-Page 7 statements regarding the defendant’s reliance on the advice of counsel, little doubt exists that the
defense will arise in opening statements and during the questioning of Government witnesses, and
may affect voir dire.
III.
Argument
The defendant has made public statements regarding his forthcoming reliance on the
advice-of-counsel defense, but he has not provided formal notice of such a defense to the
Government or the Court—notice that would trigger discovery obligations. See Scali, 2018 WL
461441, at *8 (where a defendant had signaled his “unequivocal[]” intent to rely on an advice of
counsel defense “in his pleadings,” district court concluded that defendant had triggered pretrial
discovery obligation). By December 18, 2023, however, the defendant is required to produce any
exhibits he intends to introduce in his case-in-chief, including ones on which to base an advice-ofcounsel defense. To promote fairness and efficiency, by that same date the defendant should be
required to provide formal notice to the Government of his intent to rely on the defense, and
promptly produce the concomitant required discovery. See Mubayyid, 2007 WL 1826067, at *(“[T]he requirement of a notice should be imposed only to the extent reasonably necessary to
ensure a fair and reasonably efficient trial”).
A.
Requiring Notice Promotes Fairness
Fairness dictates that the Government should be provided notice and discovery regarding
the defense sufficiently before trial. As the Mubayyid court found, the three enumerated defenses
in Rule 12.1 (alibi), Rule 12.2 (insanity), and Rule 12.3 (public authority) for which pretrial notice
is required under the Federal Rules of Criminal Procedure “share a basic characteristic with the
advice-of-counsel defense: they are ordinarily fact-intensive defenses that are likely to create
substantial problems of fairness and efficiency if raised for the first time during the trial.” Id. at
-7-Page 8 2. See also Dallmann, 433 F. Supp. 3d at 811 (relying on reasoning of Mubayyid that advice-ofcounsel defense is fact-intensive and should be addressed before trial). Given the defendant’s
obligation to provide discovery that arises from advancing the defense, the defendant should not
be permitted to pepper his exhibit list with documents that support his advice-of-counsel defense,
be coy with formally noticing the defense so as to withhold discovery undermining it, and then
ambush the Government with the defense during trial. Cf. United States v. Hitselberger, 991 F.
Supp. 2d 91, 99 (D.C. Cir. 2013) (defendant does not have constitutional right to withhold all
defense and surprise the Government); United States v. Poindexter, 725 F. Supp. 13, 33-34 (D.D.C.
1989) (“[I]t is of course hardly a novel proposition that defendants in criminal cases may be
required to disclose elements of their defenses in advance of trial.”).
In addition to having publicly advanced the defense, the defendant knows what information
the Government has—and does not have—that might support or undermine the defense. The
Government produced in discovery the privilege logs for each witness who withheld material on
the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the
defendant’s campaign was directly involved in discussions regarding privilege during the course
of the investigation. In other instances, the Government produced court orders requiring the
production of material claimed to be privileged. Compelling the defendant to provide notice, and
thereby discovery, would be reciprocal of what the Government already has produced. For
example, defense counsel publicly identified one attorney on whose advice the defense intends to
rely at trial, and the Government has produced in discovery substantial evidence regarding that
attorney and his advice, including relevant search warrant returns. 8 Any material relevant to that
That same attorney asserted an attorney-client privilege with the defendant and his
campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No.
8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client
-8-Page 9 attorney’s advice that remains shielded by the attorney-client privilege should be produced to the
Government at the earliest date to avoid disruption of the trial schedule.
In filing this motion, the Government does not concede that the defendant is entitled to
offer an advice-of-counsel defense at trial or that such a defense is supported by competent
evidence. Indeed, if the evidence disclosed by the defendant shows that the advice-of-counsel
defense is unavailable as a matter of law, in fairness the Government should be permitted to raise
that matter in advance of trial before questioning, evidence, and argument. See Rhodes, ECF No.
318 at 1 (“Such disclosure is necessary to assess the viability of the defense.”); United States v.
West, 392 F.3d 450, 456-57 (D.C. Cir. 2004) (“The defense of advice of counsel necessarily fails
where counsel acts as an accomplice to the crime.”). Juxtaposed against such a defense, the
indictment alleges that the defendant ignored the advice of attorneys and was not acting in good
faith, see ECF No. 1 ¶¶ 92-94, and the Court may need to hold a hearing in advance of trial to
determine if the defendant should be permitted to present evidence of the defense at trial. See Fed.
R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible.”); Fed. R. Evid. 103(d) (“To the extent
practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to
the jury by any means.”).
Finally, while fairness warrants pretrial notice of the advice-of-counsel defense in this case,
requiring it imposes no unfairness on the defense. Given his extensive public statements, the
defendant cannot complain that formal notice will prematurely or unfairly reveal a hidden trial
strategy. And since the defendant must produce exhibits in support of an advice-of-counsel
defense by December 18 anyway, he will suffer no prejudice in also formally noticing his intent
relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”).
-9-Page 10 to rely on the defense. After all, producing and identifying an otherwise-privileged document will
operate as a subject-matter waiver for all related communications. See White, 887 F.2d at (“Under the law of this circuit, a defendant can waive his attorney-client privilege by releasing
documents to . . . an investigative body at the pretrial stage.”); In re Sealed Case, 121 F.3d 729,
741 (D.C. Cir. 1997) (“[V]oluntary disclosure of privileged material subject to the attorney-client
privilege to unnecessary third parties in the attorney-client privilege context ‘waives the privilege,
not only as to the specific communication disclosed but often as to all other communications
relating to the same subject matter.’” (quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir.
1982)); Protect Democracy Project, Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 891 (D.C. Cir. 2021)
(describing the attorney-client privilege as taking an “all-or-nothing approach” to waiver (quoting
In re Sealed Case, 121 F.3d at 741)). Since waiver will occur otherwise by operation of law, there
is no unfairness to requiring defendant to provide formal notice, thereby triggering the requirement
to produce the potentially extensive discovery to which the Government will then be entitled.
B.
Requiring Notice Promotes Efficiency
Requiring pretrial disclosure will prevent disruption of the Court’s schedule and further
judicial efficiency to allow for the defendant to produce the discovery that such a defense would
entail. The defendant publicly claims to have had multiple lawyers providing advice in the postelection period, and at least 25 witnesses withheld information on attorney-client privilege grounds
during the course of the Government’s investigation. The process of disclosure, review, and
further investigation by the Government, followed by potential litigation as to the applicability of
the defense in this case, may be time-consuming, and—if not done in advance of trial—“risks
unnecessary interruption and delay.” Crowder, 325 F. Supp. 3d at 138; Mubayyid, 2007 WL
1826067, at *1-2 (recognizing that once defense is invoked, the Government will need to obtain
- 10 -Page 11 discovery and conduct investigations which could lead to delay). Moreover, the discovery and
investigation process surrounding the advice-of-counsel defense “may raise issues requiring
additional briefing before trial” in connection with the discovery process and the scope of the
defense itself. See Crowder, 325 F. Supp. 3d at 138. And if the defendant fails to provide timely
notice and discovery, the Court is within its discretion to preclude the defendant from asserting an
advice-of-counsel defense during trial. Id.; Rhodes, ECF No. 318 at 3 (“The court may preclude
a defendant from asserting an advice-of-counsel defense if they fail to provide the notice required
by this Order.”).
Pretrial notice is all the more warranted here because the defense is likely to arise during
the opening days of trial. For example, the defendant may wish to discuss it in his opening
statement. Or, on cross-examination of a witness in the Government’s case-in-chief, the defendant
could elicit privileged information previously shielded from the Government, thus sandbagging
the Government and necessitating an interruption of testimony or an adjournment. There is no
benefit in allowing the defendant to wait until trial to advance his defense. Rather, efficiency
requires that the Government receive notice and discovery in advance of presenting its case so that
it can fairly prepare for direct and cross-examination and avoid recalling witnesses either in its
case-in-chief or in rebuttal. See, e.g., United States v. Philip Morris USA, Inc., 219 F.R.D. 198,
200 (D.D.C. 2004) (“The underlying purpose [of case management orders] has been to ensure
efficient and orderly management of the case so that trial would proceed [on the scheduled date],
and to avoid last-minute ‘trial-by-ambush’ tactics which might jeopardize that trial date.”).
C.
Notice Should Be Given When Exhibit Lists Are Due
Once the decision is made to require pretrial notice, the Court should set the deadline most
reasonable to accomplish the twin goals of fairness and efficiency. The deadline most directly
- 11 -Page 12 related to the advice-of-counsel defense is December 18, 2023—the date on which “the parties
shall exchange lists of exhibits they intend to use in their cases in chief.” ECF No. 39 ¶ 8. 9 By
that date the defendant already is required to provide functional notice by way of the exhibits he
intends to offer into evidence; the Court should formalize the defendant’s requirement to produce
discovery by requiring notice at that point.
The defendant’s intention to pursue an advice-of-counsel defense has direct bearing on the
exhibits he will seek to introduce at 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. He also would need to
identify as an exhibit any document showing that he “made full disclosure of all material facts to
his attorney before receiving the advice at issue” and that “he relied in good faith on the counsel’s
advice that his course of conduct was legal.” Gray-Burriss, 920 F.3d at 66. This could come in
the form of emails, text messages, attorney notes, communications, or other documents, any of
which would result in a subject-matter waiver over any other privileged materials.
Requiring the defendant to give formal notice at the time he designates exhibits on
December 18 is a natural complement to the Pretrial Order. In limine motions, including ones
seeking to admit or exclude certain evidence, are due by December 27, 2023. ECF No. 39 ¶ 4.
Objections to exhibits are due by January 3, 2024. Id. ¶ 8. And January 15, 2024, is the date by
which the parties must jointly submit a short narrative description of the case to be read to the
The defendant’s “case in chief” means not only what the defendant will introduce after
the Government rests, but also substantive, non-impeachment evidence introduced during the
Government’s case-in-chief. See Crowder, 325 F. Supp. 3d at 136 (finding that “the phrase ‘casein-chief’ in Rule 16(b)(1)(A) refers to any substantive evidence [the defendant] affirmatively
intends to introduce to prove [his] theory of the case or defenses, as opposed to for the purpose of
impeachment only, regardless of when during the trial such evidence will be offered,” collecting
cases, and stating that “[n]early every court to consider the issue has concluded the same”).
- 12 -Page 13 prospective jurors, proposed voir dire questions, and jury instructions. Id. ¶ 5. The parties will
not be able to submit an effective joint proposal without advance notice of the defendant’s intent
to rely on the advice-of-counsel defense. For example, the asserted defense may inform what
questions the parties and the Court want to ask the venire during voir dire, and the Court would
benefit from the parties putting forth an agreed (or disputed) jury instruction regarding the advice
of counsel. The Redbook does not contain a generic iteration of the instruction, so necessarily the
Court will have to decide on the most appropriate language based on current law and the facts
introduced at trial. See id. ¶ 5 (“To the extent that the parties seek to use pattern jury instructions
from the current version of the DC Redbook, it is sufficient simply to list the numbers of those
instructions. Special instructions shall be submitted verbatim with citations to cases and other
authorities to support each instruction.”). The parameters of that instruction should operate as
guardrails throughout the trial and therefore should be determined by the Court prior to opening
statements.
In more simple cases with fewer attorneys on whose advice a defendant purportedly relied,
courts that have ordered pretrial disclosure of an intent to rely on an advice-of-counsel defense
ordinarily have required that it be provided within weeks of the start of trial. These cases are
factually distinguishable. See, e.g., Crowder, 325 F. Supp. 3d at 139 (requiring notice two weeks
before trial, in two defendant case involving scheme to defraud D.C. public schools); Dallman,
433 F. Supp. 3d at 813 (requiring notice ten days before trial, where defense arose from three
interactions involving two attorneys); Cooper, 283 F. Supp. 2d at 1225 (requiring notice two weeks
before trial, in health care fraud case with three defendants). In addition to the prudential reasons
to peg the defendant’s notice to the deadline for exhibit lists, a more substantial notice period is
warranted in this case because the defense likely will involve multiple lawyers, there will be
- 13 -Page 14 discovery obligations and additional litigation, and the required notice will not expose any defense
secrets. As set forth above, lead counsel has identified one attorney by name, the defendant has
spoken of getting advice from multiple attorneys, and at least 25 witnesses have withheld
information from this investigation on the basis of attorney-client privilege.
Given the potential number of attorneys and breadth of advice involved, the defendant’s
notice should describe with particularity the following: (1) the identity of each attorney who
provided advice; (2) the specific advice given, including whether the advice was oral or written;
(3) the date on which the advice was given; and (4) the information the defendant communicated
or caused to be communicated to the attorney concerning the subject matter of the advice, including
the date and manner of the communication.
IV.
Conclusion
The Court, the parties, the jury, and the public have an interest in an orderly and efficient
trial. The Court should build an appropriate interval into the pretrial schedule to ensure that all
disclosure, investigation, and litigation resulting from notice of the advice-of-counsel defense can
be addressed and resolved in an orderly fashion. For that reason, the Court should enter an order
requiring the defendant to provide notice of his intent to rely on such a defense by December 18,
2023. A proposed order is attached.
Respectfully submitted,
JACK SMITH
Special Counsel
By:
- 14 -
/s/Thomas P. Windom
Thomas P. Windom
Molly Gaston
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-Washington, D.C. 20530
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PlainSite Cover Page
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Case 1:23-cr-00257-TSC Document 98 Filed 10/10/23 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
*
*
*
*
*
*
*
*
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S OPPOSED MOTION FOR FORMAL PRETRIAL NOTICE OF
THE DEFENDANT’S INTENT TO RELY ON ADVICE-OF-COUNSEL DEFENSE
The defendant has provided public notice that he intends to rely on an advice-of-counsel
defense at trial. When a defendant invokes such a defense in court, he waives attorney-client
privilege for all communications concerning that defense, and the Government is entitled to
additional discovery and may conduct further investigation, both of which may require further
litigation and briefing. To prevent disruption of the pretrial schedule and delay of the trial, the
Court should exercise its inherent authority to require the defendant to provide notice in court of
his intent to assert such a defense by the date exhibit lists are due, December 18, 2023. Through
counsel, the defendant opposes this motion.
I.
Background
During the course of the Government’s investigation, at least 25 witnesses withheld
information, communications, and documents based on assertions of the attorney-client privilege
under circumstances 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.
In the time since the grand jury returned the indictment against the defendant on August 1,
2023, the defendant and his counsel have repeatedly and publicly announced that he intends to
PDF Page 3
Case 1:23-cr-00257-TSC Document 98 Filed 10/10/23 Page 2 of 14
assert the advice of counsel as a central component of his defense at trial. On the night of August
1, for example, defense counsel told a national audience on Fox News that the defendant “had an
advice of counsel, a very detailed memorandum from a constitutional expert.” 1 Hours later on
CNN, defense counsel argued that “Mr. Trump had the advice of counsel, Mr. Eastman, who was
one of the most respected constitutional scholars in the United States, giving him advice and
guidance.” 2
The following day defense counsel was asked on National Public Radio “to talk a little
about your legal strategy” and “give us a summary of your legal defense to these criminal
charges.” 3 Defense counsel responded, “Well, it’s not a big surprise,” and the defendant “got
advice from counsel – very, very wise and learned counsel – on a variety of constitutional and
legal issues.”
Three days after the defendant’s arraignment, defense counsel made appearances on a
circuit of Sunday news shows. On NBC, defense counsel explained that “what [the defendant]’s
being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman”
and “one thing for certain, President Trump acted under the advice of counsel when he petitioned,
under the First Amendment, petitioned Mr. Pence . . . [a]nd that’s legally protected speech.” 4
Likewise, on CBS, defense counsel claimed that the defendant “believed” a certain course of action
described in the indictment was appropriate because he was “following the advice of John
1
Fox
News,
Aug.
1,
2023,
https://www.foxnews.com/video/6332255292112.
2
CNN,
Aug.
1,
2023,
at
https://www.youtube.com/watch?v=GW7Bixvkpc0.
at
minute
minute
3:03,
2:20,
available
available
at
at
3
NPR
All
Things
Considered,
Aug.
2,
2023,
available
at
https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.
4
Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.
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Eastman.” 5 And on CNN, defense counsel argued that the conduct alleged in the indictment was
sanctioned because the defendant “was following the advice of his lawyer.” 6 Weeks later, the
defendant himself explained in a Twitter interview that “we had some lawyers, not all, we had
some lawyers that said” that a particular course of action described in the indictment was
appropriate. 7
On August 28, 2023, the Court entered the Pretrial Order to organize pretrial proceedings.
See ECF No. 39. Among other reasoned deadlines therein, the Court set December 18, 2023, as
the date for the parties to “exchange lists of exhibits they intend to use in their cases in chief.” Id.
¶ 8. By that date, the defendant will be required to identify (and, if he has not already done so,
produce) any exhibits to be used in his case-in-chief, including ones supportive of an advice-ofcounsel defense.
II.
Applicable Law
In order to assert at trial an advice-of-counsel defense—an affirmative defense, United
States v. White, 887 F.2d 267, 270 (D.C. Cir. 1989)—the defendant will be required to “introduce[]
evidence that (1) ‘he relied in good faith on the counsel’s advice that his course of conduct was
legal,’ and (2) ‘he made full disclosure of all material facts to his attorney before receiving the
advice at issue,’” United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 2019) (quoting United
States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)). If the defendant satisfies the burden to
produce evidence that would support an advice-of-counsel defense, the Court should instruct the
5
Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at
https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.
6
CNN,
Aug.
6,
2023,
at
minute
7:58,
https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.
7
available
at
Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available
at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.
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jury on the defense, and the Government retains the burden of proving the defendant’s mens rea
beyond a reasonable doubt. See United States v. Westbrooks, 780 F.3d 593, 596 (4th Cir. 2015)
(defendant bears burden of production while Government bears burden of proof); United States v.
Dallmann, 433 F. Supp. 3d 804, 810 (E.D. Va. 2020) (“the defendant bears the initial burden of
production, but the prosecution always retains the burden of persuasion, namely the burden of
proving the defendant’s guilty state of mind beyond a reasonable doubt”).
In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege
on all communications concerning the defense. See White, 887 F.2d at 270; United States v.
Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the
defendant must disclose to the Government (1) all “communications or evidence” the defendant
intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the
defendant does “not intend to use at trial, but that are relevant to proving or undermining” it.
Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is
for “information defendant submitted to the attorney on which the attorney’s advice is based, the
attorney’s advice relied on by the defendant, and any information that would undermine the
defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This
disclosure should include not only those documents which support [defendants’] defense, but also
all documents (including attorney-client and attorney work product documents) that might
impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y.
Jan. 18, 2018) (quoting Hatfield).
Accordingly, waiting until the eve of trial—or, worse, when jeopardy attaches—to raise an
advice-of-counsel defense risks causing substantial disruption and delay, particularly in this case
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given the number of attorneys involved. To avoid such disruption, courts in this District and others
have concluded that, while the Federal Rules of Criminal Procedure do not address this defense
specifically, judges retain inherent authority to order defendants to provide formal notice of an
advice-of-counsel defense before trial. See Crowder, 325 F. Supp. 3d at 138 (“Courts have broad
discretion to impose disclosure and notice requirements outside the [Federal Rules of Criminal
Procedure].”); Rhodes, ECF No. 318 (imposing pretrial notice requirement and citing Crowder);
Dallman, 433 F. Supp. 3d at 812 (“The majority of district courts that have considered the question
have sensibly exercised their inherent authority to impose a pretrial notice and discovery
requirement regarding the advice-of-counsel defense . . . .”) (collecting cases); United States v.
Mubayyid, 2007 WL 1826067, at *2 (D. Mass. June 22, 2007) (“Upon review of the cases, the
Court concludes that it may, at least under some circumstances, order that defendant give notice
of an intent to rely on an advice-of-counsel defense.”); United States v. Cooper, 283 F. Supp. 2d
1215, 1225 (D. Kan. 2003) (ordering defendant who indicated intention to rely on advice-ofcounsel defense to provide pretrial disclosure if he intends to rely on the defense); Hatfield, 2010
WL 183522, at *13 (requiring defendants to provide pretrial notice and disclosure of advice-ofcounsel defense); Scali, 2018 WL 461441, at *8 (same and scheduling hearing on “whether the
Defendant has proffered the factual prerequisites of an advice of counsel Defense”); United States
v. Crinel, 2016 WL 6441249, at *12 (E.D. La. Nov. 1, 2016) (requiring defendant to file pretrial
motion if he wishes to assert advice-of-counsel defense); United States v. Impastato, 535 F. Supp.
2d 732, 740 (E.D. La. 2008) (same).
A number of courts, in cases unlike this one, have denied such notice. See United States
v. Ray, 2021 WL 5493839, at *4 (S.D.N.Y. Nov. 22, 2021) (declining to impose notice requirement
and collecting cases showing “no consensus among federal courts”); United States v. Wilkerson,
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388 F. Supp. 3d 969, 974-75 (E.D. Tenn. 2019) (finding no good cause to compel the defendants
to provide notice before trial); United States v. Atias, 2017 WL 563978, at *4 (E.D.N.Y. Feb. 10,
2017) (concluding that prosecution in the case had not established a “right” to pretrial notice);
United States v. Meredith, 2014 WL 897373, at *1 (E.D. Ky. Mar. 6, 2014) (declining to require
notice and discovery of the defense pretrial); United States v. Lacour, 2008 WL 5191596, at *1
n.1 (M.D. Fla. Dec. 10, 2008) (“Defendants are not obligated to put on any defense, and, except
for certain [enumerated] defenses which must be disclosed prior to trial, Defendants are free to
make that decision at trial.”).
Those out-of-circuit cases are readily distinguishable, and the factors animating their
contrary rulings are not present here. For example, some courts have refrained from requiring
notice because it would force the defendant to reveal an intended defense before trial. See
Meredith, 2014 WL 897373, at *1 (declining to require notice of advice-of-counsel defense
because it “would require the defendant to reveal his trial strategy pretrial”); Ray, 2021 WL
5493839, at *5 (declining to require the defendant to disclose his defense). But here the defendant
has broadcast to the world his intent to rely on this defense. Another court expressed concern that
requiring the defendant to give pretrial notice would not place “reciprocal discovery” burdens on
the Government. See Wilkerson, 388 F. Supp. 3d at 973. Here, as explained below, related nonprivileged discovery in the possession of the Government already has been provided to the
defendant as part of the Government’s early and robust discovery productions. Courts have also
denied pretrial notice because the defense was unlikely to arise during the Government’s case-inchief. See Ray, 2021 WL 5493839, at *7 (“The Court need not now decide whether it has the
authority to require the defense to make an unequivocal assertion of privilege prior to the end of
the government’s case ….”). Here though, given the nature of the charges and the defense
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statements regarding the defendant’s reliance on the advice of counsel, little doubt exists that the
defense will arise in opening statements and during the questioning of Government witnesses, and
may affect voir dire.
III.
Argument
The defendant has made public statements regarding his forthcoming reliance on the
advice-of-counsel defense, but he has not provided formal notice of such a defense to the
Government or the Court—notice that would trigger discovery obligations. See Scali, 2018 WL
461441, at *8 (where a defendant had signaled his “unequivocal[]” intent to rely on an advice of
counsel defense “in his pleadings,” district court concluded that defendant had triggered pretrial
discovery obligation). By December 18, 2023, however, the defendant is required to produce any
exhibits he intends to introduce in his case-in-chief, including ones on which to base an advice-ofcounsel defense. To promote fairness and efficiency, by that same date the defendant should be
required to provide formal notice to the Government of his intent to rely on the defense, and
promptly produce the concomitant required discovery. See Mubayyid, 2007 WL 1826067, at *2
(“[T]he requirement of a notice should be imposed only to the extent reasonably necessary to
ensure a fair and reasonably efficient trial”).
A.
Requiring Notice Promotes Fairness
Fairness dictates that the Government should be provided notice and discovery regarding
the defense sufficiently before trial. As the Mubayyid court found, the three enumerated defenses
in Rule 12.1 (alibi), Rule 12.2 (insanity), and Rule 12.3 (public authority) for which pretrial notice
is required under the Federal Rules of Criminal Procedure “share a basic characteristic with the
advice-of-counsel defense: they are ordinarily fact-intensive defenses that are likely to create
substantial problems of fairness and efficiency if raised for the first time during the trial.” Id. at
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2. See also Dallmann, 433 F. Supp. 3d at 811 (relying on reasoning of Mubayyid that advice-ofcounsel defense is fact-intensive and should be addressed before trial). Given the defendant’s
obligation to provide discovery that arises from advancing the defense, the defendant should not
be permitted to pepper his exhibit list with documents that support his advice-of-counsel defense,
be coy with formally noticing the defense so as to withhold discovery undermining it, and then
ambush the Government with the defense during trial. Cf. United States v. Hitselberger, 991 F.
Supp. 2d 91, 99 (D.C. Cir. 2013) (defendant does not have constitutional right to withhold all
defense and surprise the Government); United States v. Poindexter, 725 F. Supp. 13, 33-34 (D.D.C.
1989) (“[I]t is of course hardly a novel proposition that defendants in criminal cases may be
required to disclose elements of their defenses in advance of trial.”).
In addition to having publicly advanced the defense, the defendant knows what information
the Government has—and does not have—that might support or undermine the defense. The
Government produced in discovery the privilege logs for each witness who withheld material on
the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the
defendant’s campaign was directly involved in discussions regarding privilege during the course
of the investigation. In other instances, the Government produced court orders requiring the
production of material claimed to be privileged. Compelling the defendant to provide notice, and
thereby discovery, would be reciprocal of what the Government already has produced. For
example, defense counsel publicly identified one attorney on whose advice the defense intends to
rely at trial, and the Government has produced in discovery substantial evidence regarding that
attorney and his advice, including relevant search warrant returns. 8 Any material relevant to that
8
That same attorney asserted an attorney-client privilege with the defendant and his
campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No.
8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client
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attorney’s advice that remains shielded by the attorney-client privilege should be produced to the
Government at the earliest date to avoid disruption of the trial schedule.
In filing this motion, the Government does not concede that the defendant is entitled to
offer an advice-of-counsel defense at trial or that such a defense is supported by competent
evidence. Indeed, if the evidence disclosed by the defendant shows that the advice-of-counsel
defense is unavailable as a matter of law, in fairness the Government should be permitted to raise
that matter in advance of trial before questioning, evidence, and argument. See Rhodes, ECF No.
318 at 1 (“Such disclosure is necessary to assess the viability of the defense.”); United States v.
West, 392 F.3d 450, 456-57 (D.C. Cir. 2004) (“The defense of advice of counsel necessarily fails
where counsel acts as an accomplice to the crime.”). Juxtaposed against such a defense, the
indictment alleges that the defendant ignored the advice of attorneys and was not acting in good
faith, see ECF No. 1 ¶¶ 92-94, and the Court may need to hold a hearing in advance of trial to
determine if the defendant should be permitted to present evidence of the defense at trial. See Fed.
R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible.”); Fed. R. Evid. 103(d) (“To the extent
practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to
the jury by any means.”).
Finally, while fairness warrants pretrial notice of the advice-of-counsel defense in this case,
requiring it imposes no unfairness on the defense. Given his extensive public statements, the
defendant cannot complain that formal notice will prematurely or unfairly reveal a hidden trial
strategy. And since the defendant must produce exhibits in support of an advice-of-counsel
defense by December 18 anyway, he will suffer no prejudice in also formally noticing his intent
relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”).
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to rely on the defense. After all, producing and identifying an otherwise-privileged document will
operate as a subject-matter waiver for all related communications. See White, 887 F.2d at 271
(“Under the law of this circuit, a defendant can waive his attorney-client privilege by releasing
documents to . . . an investigative body at the pretrial stage.”); In re Sealed Case, 121 F.3d 729,
741 (D.C. Cir. 1997) (“[V]oluntary disclosure of privileged material subject to the attorney-client
privilege to unnecessary third parties in the attorney-client privilege context ‘waives the privilege,
not only as to the specific communication disclosed but often as to all other communications
relating to the same subject matter.’” (quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir.
1982)); Protect Democracy Project, Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 891 (D.C. Cir. 2021)
(describing the attorney-client privilege as taking an “all-or-nothing approach” to waiver (quoting
In re Sealed Case, 121 F.3d at 741)). Since waiver will occur otherwise by operation of law, there
is no unfairness to requiring defendant to provide formal notice, thereby triggering the requirement
to produce the potentially extensive discovery to which the Government will then be entitled.
B.
Requiring Notice Promotes Efficiency
Requiring pretrial disclosure will prevent disruption of the Court’s schedule and further
judicial efficiency to allow for the defendant to produce the discovery that such a defense would
entail. The defendant publicly claims to have had multiple lawyers providing advice in the postelection period, and at least 25 witnesses withheld information on attorney-client privilege grounds
during the course of the Government’s investigation. The process of disclosure, review, and
further investigation by the Government, followed by potential litigation as to the applicability of
the defense in this case, may be time-consuming, and—if not done in advance of trial—“risks
unnecessary interruption and delay.” Crowder, 325 F. Supp. 3d at 138; Mubayyid, 2007 WL
1826067, at *1-2 (recognizing that once defense is invoked, the Government will need to obtain
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discovery and conduct investigations which could lead to delay). Moreover, the discovery and
investigation process surrounding the advice-of-counsel defense “may raise issues requiring
additional briefing before trial” in connection with the discovery process and the scope of the
defense itself. See Crowder, 325 F. Supp. 3d at 138. And if the defendant fails to provide timely
notice and discovery, the Court is within its discretion to preclude the defendant from asserting an
advice-of-counsel defense during trial. Id.; Rhodes, ECF No. 318 at 3 (“The court may preclude
a defendant from asserting an advice-of-counsel defense if they fail to provide the notice required
by this Order.”).
Pretrial notice is all the more warranted here because the defense is likely to arise during
the opening days of trial. For example, the defendant may wish to discuss it in his opening
statement. Or, on cross-examination of a witness in the Government’s case-in-chief, the defendant
could elicit privileged information previously shielded from the Government, thus sandbagging
the Government and necessitating an interruption of testimony or an adjournment. There is no
benefit in allowing the defendant to wait until trial to advance his defense. Rather, efficiency
requires that the Government receive notice and discovery in advance of presenting its case so that
it can fairly prepare for direct and cross-examination and avoid recalling witnesses either in its
case-in-chief or in rebuttal. See, e.g., United States v. Philip Morris USA, Inc., 219 F.R.D. 198,
200 (D.D.C. 2004) (“The underlying purpose [of case management orders] has been to ensure
efficient and orderly management of the case so that trial would proceed [on the scheduled date],
and to avoid last-minute ‘trial-by-ambush’ tactics which might jeopardize that trial date.”).
C.
Notice Should Be Given When Exhibit Lists Are Due
Once the decision is made to require pretrial notice, the Court should set the deadline most
reasonable to accomplish the twin goals of fairness and efficiency. The deadline most directly
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related to the advice-of-counsel defense is December 18, 2023—the date on which “the parties
shall exchange lists of exhibits they intend to use in their cases in chief.” ECF No. 39 ¶ 8. 9 By
that date the defendant already is required to provide functional notice by way of the exhibits he
intends to offer into evidence; the Court should formalize the defendant’s requirement to produce
discovery by requiring notice at that point.
The defendant’s intention to pursue an advice-of-counsel defense has direct bearing on the
exhibits he will seek to introduce at 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. He also would need to
identify as an exhibit any document showing that he “made full disclosure of all material facts to
his attorney before receiving the advice at issue” and that “he relied in good faith on the counsel’s
advice that his course of conduct was legal.” Gray-Burriss, 920 F.3d at 66. This could come in
the form of emails, text messages, attorney notes, communications, or other documents, any of
which would result in a subject-matter waiver over any other privileged materials.
Requiring the defendant to give formal notice at the time he designates exhibits on
December 18 is a natural complement to the Pretrial Order. In limine motions, including ones
seeking to admit or exclude certain evidence, are due by December 27, 2023. ECF No. 39 ¶ 4.
Objections to exhibits are due by January 3, 2024. Id. ¶ 8. And January 15, 2024, is the date by
which the parties must jointly submit a short narrative description of the case to be read to the
9
The defendant’s “case in chief” means not only what the defendant will introduce after
the Government rests, but also substantive, non-impeachment evidence introduced during the
Government’s case-in-chief. See Crowder, 325 F. Supp. 3d at 136 (finding that “the phrase ‘casein-chief’ in Rule 16(b)(1)(A) refers to any substantive evidence [the defendant] affirmatively
intends to introduce to prove [his] theory of the case or defenses, as opposed to for the purpose of
impeachment only, regardless of when during the trial such evidence will be offered,” collecting
cases, and stating that “[n]early every court to consider the issue has concluded the same”).
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prospective jurors, proposed voir dire questions, and jury instructions. Id. ¶ 5. The parties will
not be able to submit an effective joint proposal without advance notice of the defendant’s intent
to rely on the advice-of-counsel defense. For example, the asserted defense may inform what
questions the parties and the Court want to ask the venire during voir dire, and the Court would
benefit from the parties putting forth an agreed (or disputed) jury instruction regarding the advice
of counsel. The Redbook does not contain a generic iteration of the instruction, so necessarily the
Court will have to decide on the most appropriate language based on current law and the facts
introduced at trial. See id. ¶ 5 (“To the extent that the parties seek to use pattern jury instructions
from the current version of the DC Redbook, it is sufficient simply to list the numbers of those
instructions. Special instructions shall be submitted verbatim with citations to cases and other
authorities to support each instruction.”). The parameters of that instruction should operate as
guardrails throughout the trial and therefore should be determined by the Court prior to opening
statements.
In more simple cases with fewer attorneys on whose advice a defendant purportedly relied,
courts that have ordered pretrial disclosure of an intent to rely on an advice-of-counsel defense
ordinarily have required that it be provided within weeks of the start of trial. These cases are
factually distinguishable. See, e.g., Crowder, 325 F. Supp. 3d at 139 (requiring notice two weeks
before trial, in two defendant case involving scheme to defraud D.C. public schools); Dallman,
433 F. Supp. 3d at 813 (requiring notice ten days before trial, where defense arose from three
interactions involving two attorneys); Cooper, 283 F. Supp. 2d at 1225 (requiring notice two weeks
before trial, in health care fraud case with three defendants). In addition to the prudential reasons
to peg the defendant’s notice to the deadline for exhibit lists, a more substantial notice period is
warranted in this case because the defense likely will involve multiple lawyers, there will be
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discovery obligations and additional litigation, and the required notice will not expose any defense
secrets. As set forth above, lead counsel has identified one attorney by name, the defendant has
spoken of getting advice from multiple attorneys, and at least 25 witnesses have withheld
information from this investigation on the basis of attorney-client privilege.
Given the potential number of attorneys and breadth of advice involved, the defendant’s
notice should describe with particularity the following: (1) the identity of each attorney who
provided advice; (2) the specific advice given, including whether the advice was oral or written;
(3) the date on which the advice was given; and (4) the information the defendant communicated
or caused to be communicated to the attorney concerning the subject matter of the advice, including
the date and manner of the communication.
IV.
Conclusion
The Court, the parties, the jury, and the public have an interest in an orderly and efficient
trial. The Court should build an appropriate interval into the pretrial schedule to ensure that all
disclosure, investigation, and litigation resulting from notice of the advice-of-counsel defense can
be addressed and resolved in an orderly fashion. For that reason, the Court should enter an order
requiring the defendant to provide notice of his intent to rely on such a defense by December 18,
2023. A proposed order is attached.
Respectfully submitted,
JACK SMITH
Special Counsel
By:
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/s/Thomas P. Windom
Thomas P. Windom
Molly Gaston
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530
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