Judge Andrew Napolitano: His Own Worst Enemy, Again

On “Meet the Press” last week, former President Donald Trump made a compelling case highlighting the differences between his years in office and President Joe Biden’s. He also substantially and irretrievably undercut his principal defense in the four criminal cases in which he is a defendant.

Here is the backstory.

Four grand juries, each in a different jurisdiction, have indicted Trump on various felony charges. The allegations in the charges range generally from fraudulent bookkeeping in New York to espionage in Florida to conspiracy to prevent the transfer of presidential power in Washington, D.C., to conspiracy to overturn an election in Georgia.

In all, Trump stands accused of having committed 91 distinct criminal acts. He denies all the allegations and has pleaded not guilty in each case.

After the fourth indictment was filed last month, Trump dispatched his lead lawyer in the D.C. case, John Lauro, to the Sunday talk shows to articulate Trump’s defense. “Everything that President Trump did was with the advice of lawyers and counsel,” Lauro stated numerous times. This is the so-called advice of counsel defense; basically, my lawyers told me it was OK.

Yet, last week on “Meet the Press,” Trump revealed that his legal team in the White House told him that he lost the election and there was insufficient evidence to challenge or overturn it. Then he said that he opted to ignore their advice “because I didn’t respect them.” “It was my decision,” to do what I did, not theirs. Ouch. If he was not taking the advice of his lawyers, then he cannot invoke the advice of counsel defense. Either he relied on the advice of his legal team or he didn’t. Last weekend he contradicted his current legal team when he said he didn’t.

Even if he did rely on the advice of counsel, that’s not an absolute defense, and it is a problematic one.

The Supreme Court has recognized the advice of counsel defense since 1908, in a case called Williamson v. United States. There, a member of Congress had been convicted of encouraging a client to commit perjury on a document filed with the federal government. The prosecution was obliged — as it nearly always is in federal cases — to prove willful and unlawful intent.

Congressman Williamson told the jury that his lawyer told him that he could tell his client how to sign the document. The Congressman was convicted and the Supreme Court reversed, finding as a matter of law that the government failed to prove willful and unlawful intent.

Since that case, the courts have required precise evidence — usually in the form of live testimony from the lawyer who gave the advice — as to the nature of the advice the client sought and the precise advice the lawyer gave.

The crimes for which Trump has been indicted require the government to prove the element of intent — that Trump knew that what he was doing was wrong, but he intentionally did it nevertheless. The advice of counsel defense does not excuse or justify the crime; it challenges the government’s proofs on intent.

Thus, in order to invoke this defense, Trump will need to call to the witness stand the lawyers whom he told Lauro gave him legal advice and guided what he did in the days and hours leading up to Jan. 6. He’d then need to have those lawyers explain to the jury that he made full disclosure to them of what he planned to do and received and accepted their advice telling him that the specific course of conduct in which he planned to engage was lawful.

But he just told a national television audience that his lawyers were “RINOs” (Republicans in name only) and he didn’t respect them. He didn’t say this about Lauro, rather about unnamed lawyers advising him in the White House during the final month of his presidency.

Having denounced the lawyers whom he consulted in the White House during December 2020 and January 2021, he’d be hard-pressed to obtain their testimony in his favor. And if he somehow managed to do so, the government will use the “Meet the Press” interview to impeach the credibility of the advice of counsel claim.

I am not writing this column about Trump getting himself into deeper legal trouble for any political purpose. I have known Trump personally for nearly 40 years, and he conferred with me many times during his presidency. My interest in the outcome of the 2024 presidential election is the hope that whomever is elected president will be faithful to the Constitution and respectful of the natural rights of all persons. Sadly, no president in my lifetime has met those standards.

The purpose of this column is not to support or attack his candidacy; rather, to shed light on a little-used defense in criminal cases.

Can a bank robber employ the advice of counsel defense? He can try, but no jury will believe him, as all persons know that robbing banks is criminal. Yet, in crimes where the average person is generally not familiar with what the law condemns and what it condones — bookkeeping, espionage, conspiracy, election challenges — the advice of counsel defense can successfully be employed to mitigate the government’s proofs on intent.

But it simply will not work when the criminal defendant has denounced the lawyers whose advice he once sought as beneath his respect and has publicly rejected them.

Why does Donald Trump say things that are so harmful to his legal interests? Why does he undercut his own defense in criminal cases that expose him to the potential loss of liberty for the remainder of his life? Does he know that public opinion of him as a candidate or even as president cannot save him in a courtroom? These are questions juries may soon be answering.