2024.03.11 - DJT Notice Re Advice of Counsel Defense

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 71543-23

THE PEOPLE OF THE STATE OF NEW YORK,
PRESIDENT DONALD J.
- against - TRUMP’S NOTICE
CONCERNING HIS INTENT
DONALD J. TRUMP, TO RELY ON AN ADVICE-OF-
COUNSEL DEFENSE
Defendant.
President Donald J. Trump respectfully submits notice concerning his intent to rely on the
defense of advice-of-counsel at trial (this “Notice”), as ordered by the Court on February 7, 2024.1
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—part of which will be that President 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. As Judge Kaplan recently stated, “evidence
concerning the presence, involvement and even advice of lawyers in relevant events is viewed best
as evidence probative of the defendant’s intent to defraud or lack thereof.” United States v.
Bankman-Fried, 2023 WL 6392718, at *1 (S.D.N.Y. Oct. 1, 2023); see also United States v. Scully,
877 F.3d 464, 476 (2d Cir. 2017) (“[T]he claimed advice of counsel is evidence that, if believed,
1
The Court’s February 7, 2024 decision ordered President Trump to provide “notice and disclosure
of his intent to rely on the defense of advice-of-counsel by March 11, 2024, and to produce all
discoverable statements and communications within his possession or control by the same date.”
2/7/2024 Decision at 6.
can raise a reasonable doubt in the minds of the jurors about whether the government has proved
the required element of the offense that the defendant had an ‘unlawful intent.’”). President Trump
intends to elicit these facts from witnesses, including former AMI executives and Michael Cohen,
whom we expect will testify about President Trump’s awareness of counsel’s involvement in the
charged conduct.2 This is not a formal advice-of-counsel defense.
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 that would require him to prove at trial that 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.” Bankman-Fried, 2023 WL 6392718, at *1. Accordingly, there is no
privilege waiver requiring production of communications protected by the attorney-client
privilege, and there is no basis for the People to demand a preview of our defenses at trial. See
United States v. Wilkerson, 388 F. Supp. 3d 969, 974-75 (E.D. Tenn. 2019) (“[C]ourts should not
ad hoc invent new ways to coerce criminal defendants to assist the government in their
prosecution—absent compelling reason to do so. . . . [I]t would be untenable—and, most likely,
unconstitutional—to require Defendants to turn over potential evidence (most of which is currently
privileged) to the Government or risk forfeiting a defense.”); see also 2/7/2024 Decision at 4
(noting that the CPL does not require pretrial notice of an advice of counsel defense); cf. United
2
There are several pending motions in limine and the rulings on these motions may alter the
defense theory of the case. Moreover, several witnesses in the grand jury were either lawyers
themselves or testified about interactions they had with counsel during the course of the conduct
charged in the indictment and referenced in the statement of facts. To the extent these witnesses
are called by the People at trial, their testimony may alter the defense theory of the case. President
Trump must be afforded “a meaningful opportunity to present a complete defense.” People v.
Deverow, 38 N.Y.3d 157, 164 (2022).
-2-
States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (requiring defendant to produce
relevant materials where defendant “unequivocally” stated that he “intend[ed] to demonstrate that
he is not guilty of tax evasion because, for the years in question, he followed counsel’s advice”).
As such, President Trump is not in possession of otherwise privileged material that requires
production today pursuant to the Court’s February 7, 2024 Order.
Dated: March 11, 2023

New York, New York
By: /s/ Todd Blanche

Susan R. Necheles Todd Blanche
Gedalia Stern Emil Bove
NechelesLaw LLP Stephen Weiss
1120 Sixth Avenue, 4th Floor Blanche Law PLLC
New York, NY 10036 99 Wall Street, Suite 4460
212-997-7400 New York, NY 10005
[email protected] 212-716-1260
[email protected]
Attorneys for President Donald J. Trump
-3-

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

Index No. 71543-23

charged conduct.2 This is not a formal advice-of-counsel defense.

advice in good faith.” Bankman-Fried, 2023 WL 6392718, at *1. Accordingly, there is no

privilege waiver requiring production of communications protected by the attorney-client

prosecution—absent compelling reason to do so. . . . [I]t would be untenable—and, most likely,

production today pursuant to the Court’s February 7, 2024 Order.

Dated: March 11, 2023

By: /s/ Todd Blanche

Attorneys for President Donald J. Trump

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