The FBI executed a search warrant at former President Donald Trump’s Florida home a few days ago. The investigation appears focused on whether Mr. Trump took—and then did not return—classified or other top secret documents from the White House. He has claimed that he declassified the documents before he took them. There are now news reports that one of his lawyers signed a written statement in June that all classified documents had already been returned.
It seems inevitable that Mr. Trump will eventually argue that his lawyers told him the documents were declassified, or that it was okay for him to take them, or that they had already been returned. He’s tried this kind of defense in the court of public opinion before, explaining that on his January 2, 2021 call with Georgia officials about the election results there, “many other people, including numerous lawyers,” were “knowingly on the line.”
In pointing towards his lawyers, Mr. Trump is saying the same thing many business and institutional leaders often say when confronted by law enforcement about their undisputed actions: “It was complicated, so I relied on my lawyer to tell me what was legal.”
If he’s eventually charged with a crime, Mr. Trump may try to assert what is called the “advice-of-counsel defense.” That is a legal defense that Mr. Trump lacked criminal intent because he honestly relied on his lawyers’ advice.
Yeah, good luck with that one.
Let’s back up: Anyone who’s used an accountant to help prepare their taxes will understand the gist of this defense. The law rightly recognizes that people trying to follow the law shouldn’t be held criminally responsible for honestly following their lawyer’s advice, because they don’t have criminal intent.
There are three major barriers to asserting this defense. First, the defendant has to show that he made full disclosure of all material facts to the lawyer before receiving the advice. Second, the lawyer must have actually given the advice that the conduct was legal or appropriate. Third, Mr. Trump will need to show his good faith reliance on that advice–i.e, that he followed the advice.
Also, as a practical matter, Mr. Trump would need to waive the attorney-client privilege over these communications with his lawyers. He’d have to turn over to DOJ his emails and texts to his lawyers and vice versa.
After that, it’ll be up to a jury to decide whether the facts show good faith instead of, say, a desire to achieve a particular result no matter the facts or the law.
There are two major investigations going on right now where Mr. Trump may try to assert this defense. Let’s take a look at each one in turn to see whether the advice-of-counsel defense may provide him some a safe harbor.
Election Fraud Issue
Looking to the Georgia election call, this will be an uphill battle. The case is heating up, as Rudy Giuliani’s lawyer just confirmed that Mr. Giuliani is a target of the investigation. Mr. Trump will likely find it difficult to use legal advice as a shield for much of the conduct being investigated, because of the good faith requirement. He may not have been there to hear Mr. Giuliani allegedly tell Arizona State Representative Rusty Bowers, “We’ve got lots of theories. We just don’t have the evidence.” But future prosecutors would deploy an avalanche of evidence showing Mr. Trump knew or should have known that claims of material election fraud—the animating principle behind Mr. Trump’s conduct and any supportive legal advice—were at best baseless and at worst false.
Future prosecutors could start with former Attorney General Bill Barr, who testified in his deposition about the ongoing game of “whack-a-mole” he and his colleagues at the Justice Department were forced to play, as they debunked for the president what their investigators were finding to be “completely bogus and silly” claims “usually based on complete misinformation.” Or, more bluntly, “I told him that the stuff that his people were shuttling out to the public was bull***t—I mean, that the claims of fraud were bull***t.” Instead of good faith, Mr. Barr testified, “There was never an indication of interest in what the actual facts were.”
Future prosecutors could then move on to Mr. Barr’s replacement, Jeffrey Rosen, who along with former-Acting-Deputy Attorney General Richard Donoghue testified about their efforts to investigate a “stream of allegations” as they rolled in. Mr. Donoghue testified that he attempted “to make it very clear to the President what our investigations had revealed, and that we had concluded based on actual investigations, actual witness interviews, actual reviews of documents that these allegations simply had no merit.” Mr. Donoghue went on, listing examples, “As the President went through them, I went piece by piece to say no, that’s false. That is not true. And to correct him really in — in a serial fashion as he moved from one theory to another.” Instead of good faith, Mr. Donoghue testified, “the President said just say the election was corrupt and leave the rest to me and the Republican Congressmen.”
And, if this was not enough, future prosecutors could point to testimony from White House Lawyers Pat Cipollone and Eric Herschmann (captains on “Team Normal”), who told Mr. Trump on multiple occasions that DOJ and the FBI had looked into every major reported fraud claim and found nothing. This includes the December 18, 2020 Oval Office meeting between “Team Normal” and “Team Rudy,” where the former allegedly debunked the latter live before Mr. Trump’s eyes. Among other things, Mr. Trump would have heard Sidney Powell claim she could prove that Dominion Voting Systems had flipped votes in a Georgia county only to be reminded that, in fact, Mr. Trump had won that county. Instead of good faith, Mr. Cipollone testified, there was “a general disregard for the importance of actually backing up what you say with facts.”
Classified Documents Issue
Information about this investigation is trickling out slowly. (There’s a decent chance that this blog post will be completely outdated by the time it’s published.) It appears that DOJ had information that Mr. Trump had potentially classified documents in Florida, DOJ asked for their immediate return, and Mr. Trump’s lawyers sent (some?) documents back and told DOJ that they had all been returned in June 2022.
Assuming these facts are true, it’s troubling that the FBI may have seized additional classified documents in August 2022 through execution of the search warrant. Mr. Trump could claim that his lawyers searched Mar-a-Lago and told him they had all been returned, so he thought he was in compliance. That may be a tough sell if there were clearly-marked classified documents still in his residence—particularly if they weren’t tucked away in a storage area far from an office he uses on a regular basis.
Mr. Trump may instead contend that his lawyers told him that he had properly declassified the documents before he left the White House—and thus he was in the clear, legally speaking. That too would be fraught. Not only would he have to reveal communications with lawyers giving him that advice (which seems unlikely) but he would have to show that he had a good faith basis for believing he had actually declassified them. That would be a challenge if there are no contemporaneous documents showing this supposed de-classification before January 20, 2021.
At this point, it’s still a guessing game. We do not know what facts will emerge. But the law will remain the same. Mr. Trump, like most people I’ve represented, will not be eager to release his attorney-client communications about these issues. And it’s far from clear that those communications would support this long-shot defense anyway.