Best Evidence Rule

This would basically require him to testify, and whenever Trump testifies it guarantees a loss. https://t.co/UINqCw8l9U

— Ron Filipkowski (@RonFilipkowski) March 12, 2024

Will it happen is one question.

This is weird and I would like to hear from NY lawyers if Trump can play this game. He actually isn’t invoking the defense: he is sort of informally doing it. https://t.co/6vLaZXrGae

— Bradley P. Moss (@BradMossEsq) March 12, 2024

Procedure rules, as I’ve said. What will happen, is another question.

So the way I read this is that Trump's legal argument is his intent can never meet the requisite criminal threshold by virtue of the fact that lawyers were involved.

Sort of a "I gave orders, I assume the lawyers do everything lawfully, I am now covered" argument. https://t.co/dAWzheULlU

— Bradley P. Moss (@BradMossEsq) March 12, 2024

So, lawyers will have to testify. That voids attorney-client privilege. The defense alone won’t be allowed without evidence, and I don’t see how that evidence doesn’t include Trump’s testimony. You can’t claim reliance without evidence you actually relied. “Trust him” and “Ladies and gentlemen of the jury, does my client look like he knows the law?” are not enough.

Yes, they can try to assert the defense without putting Trump on the stand. First, whether they can at all depends on NY rules. If they can, it’s hard to see how they can do it without Trump in the stand.

And if that happens, it’s likely the jury will ask if they can bury Trump under the jail.

Ah, some “clarity.”

At the outset, we emphasize that there is a marked difference between the commonly referred to 'advice-of-counsel' defense; and the defense that President Trump expects to raise at trial," the attorneys write. 

"While President Trump intends to elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment, he does not intend to assert a formal advice-of-counsel defense." 

Such a defense would require Trump to prove he told his lawyers everything, sought and received advice that his actions were legal, and relied on their advice "in good faith," the lawyers write. 

Because this will not be a formal defense, the attorneys argue they are allowed to skip the requirement that they give prosecutors the basic details. 

"Accordingly, there is no privilege waiver requiring production of communications protected by the attorney-client privilege," the lawyers write, "and there is no basis for the People to demand a preview of our defenses at trial."

Sounds like they want to be “a little bit pregnant” to me, and raise the defense without raising it or putting Trump on the stand. Squid ink, in other words. I’m all for defendants forcing the prosecution to prove their case beyond a reasonable doubt, but this sounds like a “nudge nudge, wink wink, know what I mean?” defense.

I’m not sure the court should even allow it.