Trump May Have to Throw His ‘Clown Car’ Full of Lawyers Under the Bus

Former president Donald Trump’s legal advisors have a long history of getting themselves into all kinds of complicated trouble, from disbarment proceedings to actual prison time. 

Now, they’re on the cusp of fresh drama in the federal criminal case against Trump in Washington D.C. over Trump’s alleged attempts to subvert the 2020 election, brought by Special Counsel Jack Smith. 

Smith is attempting to force Trump into a difficult decision between, effectively, preserving a possible defense at trial, or shielding his communications with his lawyers. 

Smith asked the judge to order Trump to declare whether he’ll argue that he relied on his attorneys’ advice while attempting to reverse his electoral defeat—which is a legal defense known as “advice of counsel.” 

The stakes are high. If Trump says “yes,” he’ll retain that defense to protect himself at trial—but he’ll also be forced to hand over communications with those attorneys, which are typically held secret under “attorney-client privilege.” If he says “no,” then he’ll retain that attorney-client privilege—but leave himself less room to maneuver at trial.  

“It’s a beautiful chess move,” Gene Rossi, a former federal prosecutor in the Eastern District of Virginia, told VICE News. “This is Jack Smith going on offense. He’s saying: ‘Are you invoking the attorney-client privilege? Or are you going to rely on the advice of counsel defense?’ Those two positions are mutually exclusive.’” 

Simply put, if Trump plans to argue that his lawyers said that his actions were fine, then it follows that he should have to share what they told him, so the jury can evaluate whether his claim is true. 

Trump’s team has, so far, taken advantage of both positions at once—arguing in public that Trump’s actions were lawful because his lawyers approved of them, while also holding back communications with those legal advisors by asserting the shield of attorney-client privilege. 

If Trump says he does plan to rely on the advice of counsel defense, then he’ll likely have to hand prosecutors all his emails, text messages, and other correspondence with a host of embattled legal advisors including Rudy Giuliani, Sidney Powell, John Eastman, and more. 

That could get downright awkward for the group former Attorney General William Barr once called a “clown car” of lawyers.

“What Trump decides will have immediate consequences going forward. Disclosure of those materials between Trump and his lawyers could be explosive because they may not only debunk the advice of counsel defense, but could contain other admissions that Smith could use at trial,” former federal prosecutor Barbara McQuade wrote in a recent analysis for MSNBC. 

“In this case, the waiver would open the floodgates to discovery, since no fewer than 25 witnesses have asserted the privilege in refusing to answer questions or turn over documents. The sheer volume is one of the reasons Smith is asking for the court to force Trump to decide now,” McQuade wrote. 

There’s little telling what might be in the lawyers’ memos, notes and correspondence. 

“These attorneys were probably operating with the view that what they said was protected by privilege,” Rossi said. “But now all that advice could be hung out on a laundry line.”