A couple days ago, in his New York “hush money” case, Donald Trump’s attorneys filed a notice that he “intends to elicit these facts from witnesses . . . whom we expect will testify about President Trump’s awareness of counsel’s involvement in the charged conduct. This is not a formal advice-of-counsel defense.” Defendants in False Claims Act cases also often try to assert similar advice-of-counsel “light” defenses, where they refuse to waive the attorney-client privilege but still try to argue that attorneys blessed their illegal conduct. This tactic shouldn’t work in the hush money case, and it shouldn’t work in False Claims Act cases either.
Trump’s notice cites two cases in support of his position. One of them, United States v. Scully, 877 F.3d 464 (2d Cir. 2017), does not seem to support his position at all. In Scully, the defendant had asserted a full advice-of-counsel defense, including a privilege waiver, but the trial court still precluded him from testifying about advice he received from one of his attorneys. The court of appeals found that to be error, noting that “if [the defendant] had been permitted to testify to what he claims [his attorney] told him, the government could have cross-examined him about that testimony, noted in summation the self-serving nature of the testimony due to [the defendant]’s interest in the outcome and the conspicuous lack of corroboration from [the attorney] himself, challenged the likelihood that a reputable attorney would have given such a significant opinion orally, or called [the attorney] as a rebuttal witness.” Id. at 475. Trump, by contrast, “intends to elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment,” but still wants to preclude the prosecution from questioning witnesses about what exactly the attorneys said. The Scully court did not countenance such a tactic.
The other case Trump cites, United States v. Bankman-Fried, No. 22-cr-0673 (LAK), 2023 WL 6392718, at *1 (S.D.N.Y. Oct. 1, 2023), provides only a possibility of support for his position. In pre-trial briefing, Bankman-Fried told the court that he wanted to present “‘evidence that [he] was aware that counsel … were involved in’” various decisions at his companies, FTX and Alameda. Id. In evaluating this potential defense, the court cited cases holding that a defendant cannot assert an advice-of-counsel defense without waiving attorney-client privilege. For example, in SEC v. Lek Securities Corp., No. 17 Civ. 1789 (DLC), 2019 WL 5703944 (S.D.N.Y. Nov. 5, 2019), the court observed that “[t]he intimation that counsel ha[d] blessed a transaction or practice without waiver of the attorney-client privilege would give the defendant all of the essential benefits of an advice of counsel defense without having to bear the burden of proving any of the elements of the defense.” Id. at *3-4 (quotation omitted). Similarly, in Bankman–Fried, court observed that “the risk of confusion and unfair prejudice to the government were defendant to focus on the presence or involvement of lawyers at or for FTX and Alameda – without any degree of specificity about what they were present for or involved in, what their tasks were, what exactly they knew, and what the defendant knew about what the lawyers knew and were doing – is palpable.” 2023 WL 6392718, at *3. Still, the court held that, because “lawyer presence, involvement, or advice known to the defendant at the time of his alleged misconduct might have a real bearing on whether he acted with or without fraudulent intent,” it would consider Bankman-Fried’s offers to present such evidence “on a case-by-case basis” during the trial. Id. At trial, the court denied Bankman-Fried’s attempt to testify concerning “the involvement of attorneys” in the charged conduct, finding that such testimony posed a “substantial risk of misleading the jury.” United States v. Bankman-Fried, No. 22-cr-0673 (LAK), 2024 WL 477043, at *3 (S.D.N.Y. Feb. 7, 2024).
Other courts have not even held out the possibility of a defendant presenting such evidence absent a prior waiver. For example, in a False Claims Act case I once worked on, United States ex rel. LaCorte v. Wyeth, No. 1:03-cv-12366-DPW (D. Mass.), the defendant pharmaceutical company repeatedly asserted its attorney-client privilege to preclude certain lines of questioning during the course of discovery, but the company then proposed to call an in-house attorney in its defense at trial. In a pre-trial hearing, the court held that, while the lawyer could testify about matters that did not involve legal advice, “if there was assertion of the privilege on the basis of his legal experience and legal responsibilities, then he’s not going to be able to testify to anything having to do with legal experience and legal responsibilities including, unless somebody brings it out in cross-examination, that he’s a lawyer. You don’t get to come in the back door or be peering through the back door window. And so you assert the privilege, that’s your choice; on the other hand, you don’t get to present it in an oblique fashion.” Id., Transcript of Status Conference at 27 (Dec. 4, 2015); see also Arista Records LLC v. Lime Group LLC, 2011 WL 1642434, at *2 (S.D.N.Y. Apr. 20, 2011) (precluding defendant from asserting at trial that “it believed its conduct was lawful” because, during discovery, defendant had invoked privilege to block inquiry into its state of mind); Minnesota Specialty Crops, Inc. v. Minnesota Wild Hockey Club, L.P., 210 F.R.D. 673, 677 (D. Minn. 2002) (“‘A party who intends to rely at trial on the advice of counsel must make a full disclosure during discovery; ‘failure to do so constitutes a waiver of the advice-of-counsel defense.’”) (quoting Troublé v. Wet Seal, Inc., 179 F. Supp. 2d 291, 304 (S.D.N.Y. 2001)).
Let’s hope that the Trump court does not permit him a “back door” advice-of-counsel defense without a waiver. A true advice-of-counsel defense can be very powerful, but, in my experience, it rarely works. Because the defense requires a showing that the defendant provided its attorney with all of the relevant facts and that the defendant actually followed its attorney’s advice, see Scully, 877 F.3d at 478, the proffer of such a defense provides plenty of opportunities for a government attorney or counsel for a False Claims Act relator to make an effective rebuttal. I have found, for example, that defendants often fail to tell their attorneys about facts that would have changed their advice, or, once fully disclosed, the advice itself proves to have been more equivocal and nuanced than the defendants would like a court or a jury to believe. In practice, an advice-of-counsel defense is often a “Hail Mary” play that comes with serious risk. Consequently, defendants typically are reluctant to invoke the defense and would much prefer to do what Trump is trying to do in his upcoming New York trial. Courts have rejected those attempts in the past, and they should continue to do so.