A court filing from Special Counsel Jack Smith makes it clear Smith is demanding that failed former president Donald Trump either “put up or shut up” regarding whether or not he wants to use a specific legal defense in the 2020 election interference case brought against him by the Department of Justice, according to a former U.S. Attorney.
Barbara McQuade, who served as U.S. Attorney for Eastern District of Michigan in the Obama administration, notes in an article she wrote for MSNBC that the motion is to the point and could prove devastating for Trump’s legal team and his overall defense.
In a motion filed this week, the special counsel asked Judge Tanya S. Chutkan to order Trump to provide formal pre-trial notice of any intent to rely on advice of counsel as a defense in the federal election interference case. According to the motion, Trump and his lawyers have ‘repeatedly and publicly’ stated an intent to assert the defense at trial. The Dec. 18 exhibit list deadline, Smith argues, is the time for Trump to put up or shut up.
If Trump uses the defense, McQuade explains, he’ll lose the protections found in the attorney-client provisions of the law, which means he could then be forced to turn over any and all documents between him and his lawyers, which is about as risky as it gets when dealing with a criminal case.
Smith’s demand is important because this defense would trigger two significant consequences — a waiver of attorney-client privilege and a duty to produce all documents related to the advice. Until now, Trump has been able to have it both ways — protect testimony and documents from disclosure as privileged, while also claiming that his conduct was lawful because he simply relied on what his lawyers told him.
Those documents could prove especially damning, as they might well show exactly how Trump planned and carried out his attempted coup that culminated in the horror of January 6, 2021.
No matter what happens with the motion in the long run, McQuade concludes, it will force Trump to make a decision that could send him to prison for decades.
Regardless of whether Smith’s motion succeeds, at some point Trump will have to decide whether asserting what may be a flimsy defense is worth sharing his trove of secrets.
Will he or won’t he? We’re about to find out.
