OPINION and ORDER as to DONALD J. TRUMP: Granting in part and denying in part the government's Motion for Formal Pretrial Notice of the Defendant's Intent to Rely on Advice-of-Counsel Defense, ECF No. [98]. See Opinion and Order for details. Signed by Judge Tanya S. Chutkan on 11/8/2023. (zjd)
Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Vv.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
OPINION AND ORDER
The government has filed a Motion for Formal Pretrial Notice of the Defendant’s Intent
to Rely on Advice-of-Counsel Defense. ECF No. 98 (“Motion”). That Motion asks the court to
order that by December 18, 2023, Defendant “provide notice in court of his intent to assert” an
advice-of-counsel defense at trial. /d. at 1. For the reasons set forth below, the court will
GRANT in part and DENY in part the Motion.
The advice-of-counsel defense requires a defendant 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)). By invoking the defense, the defendant waives
attorney-client privilege and must therefore 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. United States v. Crowder, 325 F. Supp. 3d 131, 138 (D.D.C. 2018)
(emphasis in original) (citation omitted); see United States v. White, 887 F.2d 267, 270 (D.C. Cir.
1989).
Page 1 of 3Page 2 The Federal Rules of Criminal Procedure and Local Criminal Rules do not expressly
require advance notice of the advice-of-counsel defense. But because waiting until trial to
invoke the defense—and comply with the disclosure obligations it triggers—could cause
disruption and delay, some district courts have concluded that they nonetheless have inherent
authority to order defendants to provide advance notice if they intend to do assert the defense.
See, e.g., Crowder, 325 F. Supp. 3d at 138; United States v. Dallmann, 433 F. Supp. 3d 804, (E.D. Va. 2020). Other district courts, however, have concluded that they lack that authority.
See, e.g., United States v. Alessa, 561 F. Supp. 3d 1042, 1049 (D. Nev. 2021); United States v.
Wilkerson, 388 F. Supp. 3d 969, 974—75 (E.D. Tenn. 2019).
In this case, the court need not decide whether it has authority to order Defendant to
provide notice, because he “agrees to provide notice to the prosecution of whether he intends to
pursue a formal advice of counsel defense at the time jury instructions are due, which is currently
January 15, 2024.” Opp’n to Motion, ECF No. 112, at 13. Defendant also proposes, however,
that rather than requiring disclosure immediately after he provides that notice, the court “should
solicit briefing to determine a reasonable schedule” for that disclosure, depending on the scope
of the Defendant’s requested jury instruction on advice-of-counsel defense. Jd. But Defendant
cites no precedent for that procedure, and it runs contrary to the standard practice of requiring
that disclosure accompany notice, since that notice waives attorney-client privilege. See, e.g.,
Crowder, 325 F. Supp. 3d at 138-39 (requiring “notice and discovery” to be provided together);
Dallmann, 433 F. Supp. 3d at 816 (same). Indeed, notice without disclosure would have little
practical value, and would inject undue delay into the parties’ pretrial preparations.
Accordingly, the government’s Motion for Formal Pretrial Notice of the Defendant’s
Intent to Rely on Advice-of-Counsel Defense, ECF No. 98, is hereby GRANTED in part and
Page 2 of 3Page 3 DENIED in part. As he has consented to do, Defendant shall provide formal notice whether he
intends to assert an advice-of-counsel defense by January 15, 2024. If Defendant does provide
affirmative notice of that intent, he must also provide the required discovery to the government at
that time: “any communications or evidence [Defendant] intend[s] to use to establish the
defense,” and “otherwise-privileged communications that [Defendant does] not intend to use at
trial, but that are relevant to proving or undermining the advice-of-counsel defense. . . in their
entirety.” Crowder, 325 F. Supp. 3d at 138 (emphasis in original) (citation omitted).
Date: November 8,
TANYA S. CHUTKAN
United States District Judge
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Case 1:23-cr-00257-TSC Document 147 Filed 11/08/23 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Vv.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
OPINION AND ORDER
The government has filed a Motion for Formal Pretrial Notice of the Defendant’s Intent
to Rely on Advice-of-Counsel Defense. ECF No. 98 (“Motion”). That Motion asks the court to
order that by December 18, 2023, Defendant “provide notice in court of his intent to assert” an
advice-of-counsel defense at trial. /d. at 1. For the reasons set forth below, the court will
GRANT in part and DENY in part the Motion.
The advice-of-counsel defense requires a defendant 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)). By invoking the defense, the defendant waives
attorney-client privilege and must therefore 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. United States v. Crowder, 325 F. Supp. 3d 131, 138 (D.D.C. 2018)
(emphasis in original) (citation omitted); see United States v. White, 887 F.2d 267, 270 (D.C. Cir.
1989).
Page 1 of 3
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Case 1:23-cr-00257-TSC Document 147 Filed 11/08/23 Page 2 of 3
The Federal Rules of Criminal Procedure and Local Criminal Rules do not expressly
require advance notice of the advice-of-counsel defense. But because waiting until trial to
invoke the defense—and comply with the disclosure obligations it triggers—could cause
disruption and delay, some district courts have concluded that they nonetheless have inherent
authority to order defendants to provide advance notice if they intend to do assert the defense.
See, e.g., Crowder, 325 F. Supp. 3d at 138; United States v. Dallmann, 433 F. Supp. 3d 804, 812
(E.D. Va. 2020). Other district courts, however, have concluded that they lack that authority.
See, e.g., United States v. Alessa, 561 F. Supp. 3d 1042, 1049 (D. Nev. 2021); United States v.
Wilkerson, 388 F. Supp. 3d 969, 974—75 (E.D. Tenn. 2019).
In this case, the court need not decide whether it has authority to order Defendant to
provide notice, because he “agrees to provide notice to the prosecution of whether he intends to
pursue a formal advice of counsel defense at the time jury instructions are due, which is currently
January 15, 2024.” Opp’n to Motion, ECF No. 112, at 13. Defendant also proposes, however,
that rather than requiring disclosure immediately after he provides that notice, the court “should
solicit briefing to determine a reasonable schedule” for that disclosure, depending on the scope
of the Defendant’s requested jury instruction on advice-of-counsel defense. Jd. But Defendant
cites no precedent for that procedure, and it runs contrary to the standard practice of requiring
that disclosure accompany notice, since that notice waives attorney-client privilege. See, e.g.,
Crowder, 325 F. Supp. 3d at 138-39 (requiring “notice and discovery” to be provided together);
Dallmann, 433 F. Supp. 3d at 816 (same). Indeed, notice without disclosure would have little
practical value, and would inject undue delay into the parties’ pretrial preparations.
Accordingly, the government’s Motion for Formal Pretrial Notice of the Defendant’s
Intent to Rely on Advice-of-Counsel Defense, ECF No. 98, is hereby GRANTED in part and
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Case 1:23-cr-00257-TSC Document 147 Filed 11/08/23 Page 3 of 3
DENIED in part. As he has consented to do, Defendant shall provide formal notice whether he
intends to assert an advice-of-counsel defense by January 15, 2024. If Defendant does provide
affirmative notice of that intent, he must also provide the required discovery to the government at
that time: “any communications or evidence [Defendant] intend[s] to use to establish the
defense,” and “otherwise-privileged communications that [Defendant does] not intend to use at
trial, but that are relevant to proving or undermining the advice-of-counsel defense. . . in their
entirety.” Crowder, 325 F. Supp. 3d at 138 (emphasis in original) (citation omitted).
Date: November 8, 2023
TANYA S. CHUTKAN
United States District Judge
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