WASHINGTON — Dozens of witnesses who were interviewed in the federal investigation that led to a four-count indictment against former President Donald Trump for his efforts to stop the peaceful transfer of power withheld information on the basis of assertions of attorney-client privilege, special counsel Jack Smith’s office said in a court filing Tuesday.
Smith’s office is asking U.S. District Judge Tanya Chutkan to require Trump’s team to disclose by December whether he plans to argue at trial that he relied on the advice of counsel after his 2020 election loss. While many lawyers in Trump’s orbit have said they told him that mass election fraud claims were unfounded and that he couldn’t overturn the election results, Trump chose to rely upon a fringe group of lawyers that former Attorney General William Barr referred to as a “clown car.”
Since his indictment, Trump and his team have “repeatedly and publicly announced that he intends to assert the advice of counsel as a central component of his defense at trial,” Smith’s team wrote.
If Trump plans to invoke the defense, Smith’s team argued, prosecutors should gain access to additional communications between him and his lawyer.
If Trump invokes attorney-client privilege, Smith’s office said, he would also be required to waive “attorney-client privilege for all communications concerning that defense,” and federal prosecutors would be “entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.”
Smith’s office said a formal notification would prevent delays in the trial, which is set to begin in March.
Chutkan gave Trump until Oct. 20 to respond. The government will then have until Oct. 25 to file a reply brief.
The filing said at least 25 witnesses cited attorney-client privilege when they withheld information from the investigation.
“During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign,” the filing said. “These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.“
The indictment returned by a federal grand jury in August painted a picture of a Trump operation that knew some of the attorneys and plans being thrown out after the 2020 election were “crazy.” Trump had conceded to advisers that Co-Conspirator 3 — identified as Sidney Powell — “sounded ‘crazy,'” according to the indictment.
“When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases,” a senior campaign adviser wrote in a November 2020 email, according to the indictment. “I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy s— beamed down from the mothership.”
Former Trump lawyer Jenna Ellis dubbed the fringe legal team an “elite strike force” at a November 2020 news conference at the Republican National Committee.
Both Smith’s team and Trump’s attorneys are due in court Monday for a hearing about a potential partial gag order Smith’s team is seeking that would limit certain public statements about the case by Trump, the leading Republican 2024 presidential candidate.
Ryan J. Reilly is a justice reporter for NBC News.