Trump argues involvement of attorneys in reimbursements to Cohen should preclude prosecution in New York criminal trial

 March 13, 2024

The presiding judge in former President Donald Trump's upcoming New York criminal trial instructed Trump's attorneys to notify the court and prosecutors if they intended to use an "advice-of-counsel" defense against the felony business record falsification charges.

On Tuesday, Trump's attorneys did exactly that by asserting that Trump shouldn't be held accountable for the alleged falsification of business records since his attorneys at that time were involved in the matter that led to the criminal charges, according to the Washington Examiner.

Separately, the former president's lawyers also, for the first time in this case, raised the claim of presidential immunity from prosecution and requested that the trial, scheduled to commence on March 25, be indefinitely delayed until after the Supreme Court settled the outstanding immunity claim, where oral arguments are scheduled for late April and a decision should be rendered at some point in June.

Attorneys were involved, but Trump not relying on "advice-of-counsel" defense

In a three-page notice filed on Tuesday, former President Trump's attorneys wrote, "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."

"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," the filing continued, but noted, "This is not a formal advice-of-counsel defense."

The filing further proceeded to specify that "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 did not intend to raise a formal "advice-of-counsel" defense and the various disclosure requirements such a defense would entail.

"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," the attorneys wrote.

Additionally, a footnote further clarified that Trump's planned defense at trial could change and was dependent upon the outcome of several pending motions as well as who the prosecution ultimately called as witnesses during the trial and what those witnesses had to say.

Trump raises presidential immunity, asks for trial to be delayed

The Examiner reported that just a few days earlier, on Thursday, former President Trump's attorneys filed a 26-page motion that raised for the first time in the New York criminal case the claim that Trump was protected by presidential immunity from prosecution for official acts while he was in office.

As was noted in other cases in which the immunity argument has already been made, Trump's attorneys wrote, "Without immunity from criminal prosecution based on official acts, the President’s political opponents will seek to influence and control his or her decisions via de facto extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution."

"This threat will hang like a millstone around every future President’s neck, distorting Presidential decisionmaking, undermining the President’s independence, and clouding the President’s ability 'to deal fearlessly and impartially with the duties of his office,'" they added.

Given that and other arguments in support of the existence of presidential immunity, the motion requested that the case be "adjourned" or temporarily delayed until after the Supreme Court issued its decision on the immunity question.

How receptive will the judge be?

It is unclear at this point how presiding Judge Juan Merchan, who hasn't been particularly favorably disposed to former President Trump in the past, will react to and rule on these filings and requests.

Trump is facing dozens of felony criminal charges brought by Manhattan District Attorney Alvin Bragg for allegedly falsifying business records to cover up his reimbursement of former personal attorney Michael Cohen's "hush money" payments to porn star Stormy Daniels in 2016 to silence her about an alleged affair with Trump a decade earlier.

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