U.S. District Judge Tanya Chutkan recently issued a nifty but little-noticed order in the January 6 federal case against Donald Trump. It will probably prevent a lot of mischief and delay for the defendant.

Chutkan’s order last week granted the prosecutor a motion to require Trump to reveal whether he will defend an opinion of counsel in the trial set to begin in March. If Trump plans to blame his lawyers for his efforts to overturn the 2020 election, he needs to put up or shut up by January 15. There’s a good chance he’ll keep his mouth shut.

Trump has repeatedly suggested that he relied on the advice of his lawyers in his blatantly unconstitutional post-election behavior. Most explicitly, Trump’s lawyer John Lauro claimed on Meet the Press in August that his client was ultimately charged for following legal advice from an esteemed scientist, John Eastman. Lauro added that Trump also followed Eastman’s advice when he asked Mike Pence to refuse to certify Joe Biden’s election.

But there is a wide gap between such a casual assertion and actually mounting a defense on the advice of counsel at trial.

An advice-of-counsel defense attempts to demonstrate a lack of criminal intent based on reliance on an attorney’s advice. A defendant who makes this claim must be able to show that he relied in good faith on counsel’s advice that the course of action was legal, that is, not only that he received the incorrect advice, but that he took it to heart. And he must also demonstrate that he fully disclosed all material facts to his attorney before receiving the advice.

The latter requires a step that few defendants are willing to take: waiving attorney-client privilege and disclosing all communications that will be used to mount the defense.

Beyond that,

a suspect must disclose otherwise privileged communications relevant to proving or undermining the defense, even though they will not be used at trial.

Trump’s first hurdle in this regard is proving a bona fide attorney-client relationship with Eastman. Trump was shrewd about who his lawyers were in the critical post-election period. If he wants to blame Eastman’s counsel, he’ll have to show it

that Oostman

was his attorney with a lien letter, bills or other evidence.

Trump should then be an open book about the advice Eastman gave. That poses a serious problem for the former president: Eastman notoriously admitted that his theory about how Vice President Mike Pence could disrupt Congress’ certification of the election results. He also admitted to Pence lawyer Greg Jacob that the Supreme Court could be expected to unanimously reject his crazy idea.

Trump would further have to deal with Eastman’s own contradictory portrayal of his advice. With the kind of duplicity that gives lawyers a bad name, Eastman has insisted that he put forward several options but never explicitly called out the illegal behavior Trump undertook and never even shared his infamous memos with the then-president.

Another inconvenient fact is that Eastman is being suspended for his false public statements about election fraud. A California judge recently concluded provisionally that he had violated professional ethics.

We still weren’t done with the obstacle course that Trump would face. To strengthen the defense of counsel’s opinion, he should also provide the government with otherwise privileged communications relevant to rebutting the defense. Consider, for example, explicit advice

in return for

trying to overturn the elections of people like former Atty. General William Barr, White House Counsel Pat Cipollone and the rest of Team Normal.

Most daunting of all, Trump would have to demonstrate that he actually relied in good faith on Eastman’s advice that his conduct was legal. I can only think of one way for him to do that: take the stand and test whether he has done that. The subsequent cross-examination would be nothing short of brutal. (Mr. Trump, it has been pointed out to you repeatedly, haven’t you, that the conduct you encouraged the Vice President to commit was unconstitutional?)

The wisdom of Chutkan’s order is that it prevents Trump from ambushing the government at trial, a stunt I’ve seen defendants attempt more than once. Without notice, there would be nothing to stop Trump’s attorney from raising the claim in an opening statement or mid-trial, while it would not be feasible to litigate what Trump has to offer. Trump may try to get away with defending without meeting demands, but special counsel Jack Smith and Chutkan will have plenty of time to call him in.

The judge’s order prevents Trump from blaming his lawyers for Jan. 6 without presenting a trove of otherwise privileged material and taking the stand to testify to his own good faith. Rather than ramping up the defense as the law requires, expect Trump to abandon it entirely.

Harry Litman is the host of the

Talking Feds Podcast

.

@harrylitman