Fact check: Trump’s misleading claim about the judge and ‘advice of counsel’

Former President Donald Trump continued on Tuesday to criticize the judge presiding over his Manhattan criminal trial, Juan Merchan, this time complaining that Merchan was not allowing him to invoke the advice he claims he was given by lawyers. Criminal defendants sometimes employ an “advice of counsel” defense to try to demonstrate that they had not intended to break the law.

“Here, I’m not even allowed to say ‘advice of counsel.’ This is a new one to me, ‘advice of counsel,’” Trump told reporters outside the courtroom. “When you have a lawyer and the lawyer does something or advises you on something, you say ‘advice of counsel.’ He said you’re not allowed to say that.”

Facts First: Trump’s claim is misleading. He failed to mention that the reason Merchan will not allow Trump’s legal team to invoke “advice of counsel” during the trial is that, when Trump was asked before the trial whether he would be using an “advice of counsel” defense, his lawyers told Merchan he would not.

An “advice of counsel” defense typically requires the defendant to waive attorney-client privilege. Trump’s lawyers told Merchan before the trial that instead of a “formal” defense of “advice of counsel,” Trump wanted to use a different defense in which he would not waive attorney-client privilege but would still “elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment.”

Merchan rejected this proposal. He wrote in March: “To allow said defense in this matter would effectively permit Defendant to invoke the very defense he has declared he will not rely upon, without the concomitant obligations that come with it. The result would undoubtedly be to confuse and mislead the jury. This Court can not endorse such a tactic.”

Therefore, Merchan ruled, Trump could not invoke or even suggest a “presence of counsel” defense in the trial.

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