By Zach Schonfeld - 05/29/24

NEW YORK — Former President Trump claimed Wednesday that he is being prevented from mounting an advice-of-counsel defense in his hush money trial — a defense his own lawyers made clear months ago that they would not invoke.

A formal advice-of-counsel defense would enable the former president to argue he was acting reasonably based on what lawyers around him were telling him.

Trump is on trial in New York for a hush money payment made by former Trump fixer and lawyer Michael Cohen to porn actor Stormy Daniels. Prosecutors say the payment to keep quiet about an affair was disguised as a legal expense and meant to influence the election. Trump denies the affair and involvement in the payment to Cohen, who was reimbursed for the money.

The jury is likely to begin deliberations Wednesday.

In a series of Truth Social posts following Tuesday’s closing arguments, Trump raised the legal argument.

“Kangaroo Court!” Trump wrote on Truth Social. “A corrupt and conflicted judge. Reliance on counsel (advise of counsel) not allowed by Merchan, a first.”

In a post issued Tuesday night, Trump had also complained about not raising an advice-of-counsel defense and called the case a “rigged trial.”

But Trump’s own legal team made clear in March that it would not invoke a formal advice-of-counsel defense.

Despite not invoking the defense, Trump’s lawyers had indicated they wanted to still introduce evidence concerning the involvement of lawyers in the hush money arrangements at the center of the case, an argument the judge dubbed a “presence of counsel” defense.

“To allow said defense in this matter would effectively permit the defendant to invoke the defense he has declared he will not rely upon, without the concomitant obligations that come with it. The result would undoubtedly be to confuse and mislead the jury. The Court can not endorse such a tactic,” Merchan wrote in a March ruling.

Trump faces 34 counts of falsifying business records over payments made to Cohen, who had given Daniels $130,000 just before the 2016 election to stay quiet about an alleged affair with Trump. The former president pleaded not guilty and has denied any wrongdoing.

After the judge gives his final instructions, the jury of 12 New Yorkers is expected to begin deliberations late Wednesday morning to decide whether to hand up the first criminal conviction of a former U.S. president.