How Jack Smith ordered Trump to 'put up or shut up': legal expert

13 October 2023

One of the defenses that former President Donald Trump is using in special counsel Jack Smith's 2020 election case is that he was simply acting on the advice of his attorneys.

Smith alleges that Trump violated federal lawyers after losing the election to now-President Joe Biden and trying to stay in office anyway. Some of Trump's attorneys from late 2020 and early 2021 are co-defendants in a separate election-related criminal case being prosecuted by Fulton County District Attorney Fani Willis for the State of Georgia, including Jenna Ellis, Sidney Powell and former New York City Mayor Rudy Giuliani.

In an op-ed published by MSNBC on October 13, former federal prosecutor Barbara McQuade lays out some reasons why Trump's advice-of-my-attorneys argument is problematic in Smith's federal case.

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"Jack Smith is asking former President Donald Trump to put his money where his mouth is," McQuade explains. "Or at least to put his documents there. In a motion filed this week, the special counsel asked Judge Tonya S. Chutkan to order Trump to provide formal pre-trial notice of any intent to rely on advice of counsel as a defense in the federal election interference case."

The MSNBC legal analyst continues, "According to the motion, Trump and his lawyers have 'repeatedly and publicly' stated an intent to assert the defense at trial. The December 18 exhibit list deadline, Smith argues, is the time for Trump to put up or shut up. Smith's demand is important because this defense would trigger two significant consequences — a waiver of attorney-client privilege and a duty to produce all documents related to the advice."

Smith's motion, according to McQuade, "will push Trump to make a decision — use the advice of counsel defense at trial or protect every document, memo, e-mail, text message sent between him and Sidney Powell, John Eastman, Rudy Giuliani and the other lawyers William Barr referred to as a 'clown car.'"

Read Barbara McQuade's full MSNBC opinion column at this link.

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