A month ago, Special Counsel Jack Smith sought to compel Donald Trump to disclose any intentions to claim an advice of counsel defense in the Florida documents case. Smith argued that such a defense would necessitate scrutiny into attorney-client communications, particularly if it was relied upon during the trial. Prosecutors highlighted that, should such a stance be asserted, disclosures of all linked attorney-client communications would be required, in accordance with district precedent. This stance sparked a visibly vehement response from Trump and his allies, who spent an entire year challenging the concept, asserting Trump had the legal right to retain government documents despite a subpoena. This was due to a previous incident in 2012 where Judge Amy Berman Jackson did not order the National Archives to seize certain taped recordings, an apparent inspiration for such claims.
If such an obvious hint was supposed to serve as a reminder to Judge Aileen Cannon, a judge known for forcing defendants to disclose their intent to assert the advice of counsel defense, it seems to have been ignored. On November 10, she chose to delay all deadlines, without sharing her plan to either push Trump to declare his stance or remain silent.
Last night, a report from ABC News filled this gaping void, claiming that Trump’s lawyer, Jennifer Little, testified to the grand jury in DC that she had warned Trump that it would be illegal to retain the documents in defiance of a subpoena. Little spoke up after Judge Beryl Howell overruled attorney-client privilege under the crime-fraud exception for herself and Evan Corcoran, another lawyer tasked with searching Trump’s boxes for classified documents they had already liquidated. The New York Times reported that Little, who also covers Trump in Georgia, was hired to advise Trump about the subpoena, as she was one of the few individuals in his vicinity with knowledge of the criminal justice system.
According to prosecutors, Trump had openly expressed his thoughts about blatantly defying the subpoena in the summer of 2022, to which Little is renowned for stating the obvious answer, “You’ve got to comply.” If Trump were to assert an advice of counsel defense, he would need to waive privilege regarding all these communications. This in turn, would nullify his proposed challenge to the admissibility of the grand jury evidence based on baseless allegations of prosecutorial misconduct.
America now waits nervously as Judge Aileen Cannon has yet to push Trump to commit to a legal strategy. With her past record in mind, it wouldn’t be surprising if she lets him put off making that unpleasant decision until after the 2024 election. A case to watch closely is US v. Trump, which is being tracked attentively by legal professionals on Court Listener.