“Advice of Counsel” Defense is Perilous

President Donald Trump offered a defense Thursday to accusations he broke campaign finance law by directing his longtime attorney/fixer Michael Cohen to orchestrate hush-money payments to conceal at least two of Trump’s alleged affairs: He was just following his lawyer’s advice. His exact statement was put out on Twitter:

“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’”

This President is supposedly surrounded by some of the best lawyers in the country on his legal team but he seems to think he can handle it on his own because certainly no responsible lawyer would let his client Tweet out what your defense to a Federal felony would be and especially if “advice of counsel” was your defense.

Courts have held that the defense applies when a person has gone to a lawyer to ask about whether something is legal, disclosed all material facts, and then relied in good faith on the professional’s advice that no laws were being broken. So that means Trump would have to allege he was worried that the hush money might be campaign finance violation and asked Cohen whether it was and Cohen told him no. But he has also repeatedly stated that (a) he had no idea about the payments (b) it was not related to the campaign and (c) Cohen acted on his own. If he were to assert this on the stand, say in some future trial or hearing, the cross examination would be swift and painful. Trump would have to establish that he was actually seeking Cohen’s legal advice in connection with the hush-money payments and not relying on him to handle the matter as his long-time fixer. He would be asked why he thought he needed legal advice and essentially have to acknowledge he was worried about violating campaign finance laws. His intent to violate the law is a key element that the US Attorney’s Office would have to prove and it would have been by far the hardest. But if the Advice of Counsel argument fails, then Trump would have admitted his intent for nothing good in return. In some Federal Circuits, the defense only mitigates punishment, it does not vindicate or clean up the conduct. Since its the SDNY, it would be the Second Circuit that controls. In 2017, the Second Circuit issued an opinion that stated that it is not an affirmative defense but rather can be used to disprove intent. This is the legal explanation of the principle the court stated should be read to a jury:

If the defendant relied in good faith on the advice of an attorney that his conduct was lawful, then he lacked the intent to defraud or willfulness required to prove the offenses charged. The defendant relied in good faith on the advice of counsel if:

1. Before taking action, he in good faith sought the advice of an attorney whom he considered competent to advise him on the matter; and
2. He consulted this attorney for the purpose of securing advice on the lawfulness of his possible future conduct; and
3. He made a full and accurate report to his attorney of all material facts that he knew; and
4. He then acted strictly in accordance with the advice of this attorney.
You may consider the reasonableness of the advice provided by the attorney when determining whether the defendant acted in good faith.
The defendant does not have to prove his good faith. Rather, the government must prove beyond a reasonable doubt that the defendant acted with intent to defraud or willfully as charged

The mere fact that the defendant may have received legal advice does not, in itself, necessarily constitute a complete defense. Instead, you must ask yourselves whether the defendant honestly and in good faith sought the advice of a competent lawyer as to what he may lawfully do; whether he fully and honestly laid all the facts before his lawyer; and whether in good faith he honestly followed such advice, relying on it and believing it to be correct. In short you should consider whether, in seeking and obtaining advice from a lawyer, the defendant intended that his acts shall be lawful. If he did so, it is the law that a defendant cannot be convicted of a crime that involves willful and unlawful intent, even if such advice were an inaccurate construction of the law.
On the other hand, no man can willfully and knowingly violate the law and excuse himself from the consequences of his conduct by pleading that he followed the advice of his lawyer Whether the defendant acted in good faith for the purpose of seeking guidance as to the specific acts in this case, and whether he made a full and complete report to his lawyer, and whether he acted substantially in accordance with the advice received, are questions for you to determine.

Also, the advice-of-counsel defense doesn’t apply if both the lawyer and the client understand that what they are doing is illegal. According to Cohen, both he and Trump understood that they were paying hush money to quiet the women and influence an election, and then covered it up to hide the illegality. So if a jury believed Cohen, the defense would fail. The court would also look at whether Trump acted reasonably in relying on Cohen who had no real expertise in campaign finance law.

Dumb & Dumber?
Photo credit:
Jonathan Ernst/Reuters

But there is another reason why it is dangerous for any person accused of a crime to assert the Advice of Counsel defense. Once you do, you have opened the door to all your attorney-client confidential material on the subject. You cannot assert the defense and maintain the attorney-client privilege. That is why it is one of the least used defenses in criminal defense. You mostly see it in tax cases or other cases where the crime is easily proved by documents and you have no other factual based defense other than “I relied on my lawyer.” Last year, for example, New York Mayor Bill de Blasio dodged criminal charges for election law violations in part because the parties involved in making legally questionable transfers of campaign funds relied on the advice of their attorneys. It would have been hard to prove otherwise since attorneys were proven to be involved in the transfers and the was a very limited scope of representation so there was no door that could be too widely opened. Contrasting that to the Trump/Cohen scenario, their long-standing relationship would be up for inspection. Also, Trump would be losing a key argument to fighting the subpoena that allowed the raid on his lawyer’s office. Remember all that fighting about which documents were privileged and which weren’t? Well, that argument goes out the window and all of the several hundred pages that were deemed attorney-client privileged could be revealed. And by the way, many courts have ruled that the waiver of privilege extends past the alleged criminal act itself so all the communications before and after the alleged crime would be up for grabs.

Trump has not been charged with a crime, and it remains unclear whether the U.S. Justice Department, under its own protocol, would ever bring a case against a sitting president. So I am writing this not for President Trump but for those who might be thinking about invoking this defense. Be careful. Tread lightly. You could easily be making matters worse for yourself.

Follow me on Twitter @oscarmichelen

4 Comments

  1. “This President is supposedly surrounded by some of the best lawyers in the country on his legal team.”

    I’ve literally never heard that assertion before. The contrary; I’ve read he can’t get some of the best because he has a reputation of both ignoring legal advice and for stiffing his lawyers.

    • While all you hear about is Rudy Giuliani, who has been an embarrassment, his main lawyers on Russia and impeachment are Jay Sekulow and Emmett Flood. Both of hem are serious lawyers (why you don’t hear them on CNN and Fox every day) Check out their credentials and experience and you will see that behind the scenes he has some very god lawyers working on his behalf.

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