Former President Trump (AP Photo/Seth Wenig) and Michael Cohen (Chip Somodevilla/Getty Images)
In response to the trial judge's order to state their position on an advice of counsel defense before the New York hush-money trial, former President Donald Trump’s lawyers disclosed that they are currently only interested in questioning key witnesses to gather facts about his “awareness” that lawyers were involved in the “underlying conduct.”
The brief notice was submitted ahead of the scheduled March 25 trial, which the Trump defense recently tried to delay, irking Acting Manhattan Supreme Court Justice Juan Merchan, mentioned that they are not presently adopting a “formal advice-of-counsel defense.” Instead, the defense aims to demonstrate, through witness testimony they “gather,” that Trump “lacked the necessary intent to commit the conduct charged in the Indictment due to his awareness that various lawyers were involved in the underlying conduct giving rise to the charges.”
According to the filing, the “defense theory of the case” may change depending on the resolution of pending motions, but as of March 11, the defense plans to question former Trump fixer Michael Cohen and former AMI executives who 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 attempting 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 stated that because they are not 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.
Look at the Trump announcement here.