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Former President Trump (AP Photo/Seth Wenig) and Michael Cohen (Chip Somodevilla/Getty Images)
Having been ordered by the trial judge to provide notice as to their position on an advice of counsel defense ahead of the New York hush-money trial, former President Donald Trump’s attorneys revealed that they are only interested, at this time, in questioning key witnesses to “elicit” facts about his “awareness” that lawyers were involved in the “underlying conduct.”
The brief notice ahead of the scheduled March 25 trial, which the Trump defense recently sought to put on hold, irking Acting Manhattan Supreme Court Justice Juan Merchan, stated that they are not now embracing a “formal advice-of-counsel defense.” Rather, the defense is looking to show, through witness testimony they “elicit,” that Trump “lacked the requisite intent to commit the conduct charged in the Indictment because of his awareness that various lawyers were involved in the underlying conduct giving rise to the charges.”
The filing said that depending on how pending motions are resolved, the “defense theory of the case” may be altered, but as of March 11 the defense’s intention is to grill former Trump fixer Michael Cohen and former AMI executives whom they “expect will testify about President Trump’s awareness of counsel’s involvement in the charged conduct.”
Cohen, the former Trump lawyer who went to federal prison for his role in trying to cover up the Stormy Daniels affair by using Essential Consultants, LLC, to pay the porn star $130,000 weeks before the 2016 election, was the subject of Manhattan DA Alvin Bragg’s (D) recent response to “intentionally inflammatory and totally meritless” defense claims. Notably, the defense argued against Cohen’s participation in the case as a witness by saying that would open to door to the prosecution suborning perjury.
“The suggestion that the People may suborn perjury by calling Cohen to testify,” Bragg wrote, “is intentionally inflammatory and totally meritless. The People expect Cohen’s testimony at trial to be both true and corroborated, including by extensive documentary evidence, the testimony of other witnesses, and defendant’s own statements.”
AMI — American Media Inc., which published the National Enquirer — has long been a central figure in the controversy by paying former Playboy model Karen McDougal $150,000 for her story about a relationship she said she had with Trump from 2006 to 2007, only to bury the allegations through a catch-and-kill scheme. AMI’s former CEO David Pecker and and former chief content officer Dylan Howard were both relevant grand jury witnesses in the eyes of the prosecution.
The defense said that because they aren’t asserting a “formal advice-of-counsel defense,” they have not waived privilege. Why not formally raise that defense? Because then Trump would have to prove he “(1) made a complete disclosure to counsel [concerning the matter at issue], (2) sought advice as to the legality of his conduct, (3) received advice that his conduct was legal, and (4) relied on that advice in good faith,” the filing noted.
Read the Trump notice here.
