The main defense being used by failed former president Donald Trump to shield himself from criminal charges related to efforts to overturn the 2020 election results is that he was merely acting on the advice of legal counsel.
But what if one of the people giving Trump legal advice was intoxicated? And what if the ex-president knew that but continued to let one of attorneys guide his decisions?
Thanks to a blockbuster report from Rolling Stone, we now know that Trump was indeed listening closely to what his personal attorney, Rudy Giuliani told him, despite the fact that several people allege Guiliani was drunk most of the time while dispensing legal guidance.
Some witnesses told (Special Counsel Jack) Smith’s team that they saw Giuliani consuming significant quantities of alcohol; some told the special counsel’s office that they could clearly smell alcohol on Giuliani’s breath, including on election night, and that they noticed distinct changes in his demeanor from hours prior, the sources tell Rolling Stone.
Some have already told investigators that they were directly aware of moments when Trump had talked to others about Giuliani’s drinking, and that Trump spoke negatively about his then-top lawyer’s alcohol consumption. (Trump is known for being a longtime teetotaler.)
That would mean that the “advice of counsel” ploy being used by Trump is no longer valid, according to Mitchell Epner, a former Assistant United States Attorney for the District of New Jersey:
“In order to rely upon an advice of counsel defense, the defendant has to, number one, have made full disclosure of all material facts to the attorney. That requires that the attorney understands what’s being told to them. If you know that your attorney is drunk, that does not count as making full disclosure of all material facts.”
Former federal prosecutor Glenn Kirschner noted on MSNBC that Trump might have taken bad advice from an inebriated Guiliani as a “cover” to engage in illegal activities.
“Is he taking the advice from somebody who everyone in the room knows is drunk?” Kirschner asked. “If you’re taking advice from a thoughtful, sober, learned counsel, that, you know, might give you some protection on the advice of counsel front. But if you’re taking advice from, you know, from the town drunk sitting in the public square yelling at the clouds, you’re not going to have much of an advice of counsel defense.”
Kirschner added, “These are not salacious issues and I think more fundamentally, on the advice of counsel defense, I also think it is really hard for Donald Trump to pursue that when his counsel are his co-defendants in the Jan. 6 trial. They’re his unindicted co-defendants and there is no advice of co-defendant offense. So, that also complicated the advice of counsel defense that Donald Trump might otherwise have.”
Donnie might want to start thinking about a plea deal with Jack Smith.