Special Counsel Jack Smith sought a court order last year in the federal classified documents case to force former President Donald Trump to disclose a particular defense argument he might raise during the eventual trial.
Much to the humiliation of Smith, and provoking outrage among fierce critics of Trump and the presiding judge, the judge just denied Smith's request that Trump disclose if he planned to rely on an advice-of-counsel defense, according to Newsweek.
The move rekindled accusations that U.S. District Judge Aileen Cannon, a Trump appointee, is biased in favor of the former president and has taken action to deliberately slow down and delay the proceedings to Trump's benefit.
In November, Special Counsel Smith filed a motion for notice and disclosure of former President Trump's possible plans to rely upon an advice-of-counsel defense, which would entail additional pre-trial discovery on the part of the defense if raised.
"The Government is not aware of any valid basis for an advice-of-counsel defense, but, if asserted at trial, it would require inquiry into any attorney communications on which it is based, and, under precedent in this District, would require disclosure of any such attorney-client communications," the motion stated.
"Accordingly, in order to prevent disruption of the trial, the Government requests an order requiring advance notice of any advice-of-counsel defense and timely production of any associated discovery so that any legal issues can be fully resolved well in advance of trial," the filing continued. "In filing this motion, the Government does not concede the appropriateness or viability of an advice-of-counsel defense, or that a jury instruction will be warranted."
According to Law & Crime, Special Counsel Smith's motion went on to provide multiple examples of public statements by former President Trump that seemed to suggest that he had been "told" by his attorneys that he was not obligated by law to return the purported classified documents he retained after leaving the White House.
Per federal rules and precedent, an advice-of-counsel defense requires the piercing of attorney-client privilege and necessitates the handing over of all relevant materials and legal advice by the defense in advance of the trial.
"Accordingly, waiting until the eve of trial -- or, worse, until after jeopardy attaches -- to raise an advice-of-counsel defense risks causing substantial disruption and delay, particularly in this case given the number of attorneys to whom the defendant might point in raising the defense," the motion stated. "To avoid such disruption, courts around the country have concluded that, although the Federal Rules of Criminal Procedure do not address this defense specifically, judges retain inherent authority to order defendants to provide formal notice of an advice-of-counsel defense before trial."
Unfortunately for Special Counsel Smith, Judge Cannon was not convinced to take the requested action by that motion and on Friday issued a paperless order on the docket to deny the motion, albeit "without prejudice," meaning it can be refiled again at a later date.
Cannon wrote, "Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice-of-counsel trial defense, the Court determines that such a request is not amenable to proper consideration at this juncture, prior to at least partial resolution of pre-trial motions, transmission to Defendants of the Special Counsel's exhibit and witness lists, and other disclosures as may become necessary."
"The Special Counsel's Motion 208 is therefore denied without prejudice," she added.
Newsweek reported that Judge Cannon's decision sparked furious recriminations online from various anti-Trump legal experts who accused the judge of acting favorably toward the former president who appointed her to the bench.
The complaints fed into the fearful narrative from Trump's opponents that he is attempting to delay his several criminal trials until after the 2024 election in hopes that he wins and can then use his resumed executive authorities and power to further delay or completely extinguish his legal troubles.
