Mike Gallagher is a relatively mainstream conservative from Wisconsin. He was the first choice of the national Republicans to take on Tammy Baldwin for her Senate seat. Last month, after a poll came out showing the the state’s MAGAt base was overwhelmingly in favor of one of their own— former Milwaukee County sheriff and QAnon sociopath David Clarke—Gallagher announced he wasn’t running. The NRSC was stuck and they turned to another congressman, a less mainstream member of the “Freedom” Caucus, Tom Tiffany, crazy but not as off-the-rails as Clarke. Yesterday Tiffany announced he isn’t running either. David Clarke isn’t going to be elected in anything that non-MAGATs vote in. Wisconsin: off the board. In Pennsylvania, the NRSC's top recruit, David McCormick, may be getting cold feet. McCarthy had written off Wisconsin already but he was really counting on a rich sucker like McCormick to spend enough of his own-- and his friends'-- money to have a shot in Pennsylvania.
And Trump is going to drag his party down— in Wisconsin, Pennsylvania and pretty much everywhere else where they speak English without a southern accent. MAGATs excluded, more and more people get it. And now Señor T is ready to throw his old lawyers— who followed his instructions— under the bus and turn on these former aides. Yesterday, Rolling Stone’s Adam Rawnsley and Asawin Suebsaeng reported that Trump’s current attorneys are preparing a legal plan to shovel blame onto the lawyers who aided his attempt to overturn the 2020 election. Just before the indictments were unsealed yesterday: “Trump is on the cusp of being indicted over Jan. 6 and its surrounding events, and if the case goes to trial, his current legal team is preparing an ‘advice of counsel’ argument, attempting to pull blame away from the former president for any possible illegal activity. Plans for such a defense have been percolating since last year, the two sources say. Several lawyers in Trump’s ever-shifting legal orbit spent time both this and last year quietly studying past high-profile cases involving this particular line of defense. The attorneys tried to game out how such an argument would fare in front of a judge or a jury.”
That's how the Rupert Murdoch and family celebrated Trump's latest indictment. Now, keep in mind that based on quotes in the Trump indictment released late yesterday, 5 of the 6 co-conspirators have been identified as-- in order-- Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark and Kenneth Cheeseboro... in other words, the same people Trump wants to offer up as patsies for the crimes he has been charged with committing.
In the aftermath of Joe Biden’s 2020 election victory, Trump had an armada of lawyers— some officially representing him, and some simply aligned with him— spreading unhinged conspiracy theories and pushing states to reverse the results: Rudy Giuliani. Sidney Powell. John Eastman. The list goes on and on.
The attorneys were acting on Trump’s behalf. But in this legal strategy, Team Trump would argue it was the lawyers leading Trump, rather than the other way around.
“It is an argument the [former] president likes, and the team is on board with it,” one Trump adviser bluntly says, then somewhat ominously adding: “John [Eastman] and Rudy [Giuliani] gave a lot of counsel … Other people can decide how sound it was.”
Trump lawyers and his spokesperson did not respond to requests for comment on this story. But the team is already previewing the “advice of counsel” strategy in the media, repeatedly stressing that the president was acting on the legal advice he was being given.
“My attorneys had a productive meeting with the DOJ this morning, explaining in detail that I did nothing wrong, was advised by many lawyers, and that an Indictment of me would only further destroy our Country,” the (so far) twice-indicted former president posted to his social media website last week.
…Some people involved in Trump’s legal defense have questioned whether this strategy is sound. Starting last summer, there had been debate among some of Trump’s top attorneys on how effective an aggressive “advice of counsel” would prove, according to two people familiar with the situation. “There were some of us who thought that kind of strategy would fall flat in front of a judge,” a person with direct knowledge of the discussions says.
“To my mind, ‘advice of counsel’ is a much more narrow defense, whereas a more comprehensive view of everything that went into Trump’s state of mind, and would affect the mens rea element of it, is more effective,” Tim Parlatore, formerly a key Trump attorney handling Special Counsel Jack Smith’s investigation who quit the team in May, tells Rolling Stone on Monday. “This would include all of the advice and the information that he received and was basing his decision on— not just the advice from the attorneys who were formally representing him.”
But following the last two months— as the Trump legal team specifically tasked with handling the special counsel’s probes underwent an implosion and then a rebuilding— a clear focus on the advice-of-counsel defense has emerged.
There could be some small snags with using this strategy, though. For instance, many of these lawyers— Giuliani, Eastman, and all the rest— were merely doing what then-President Trump wanted them to do, or had told them to do: to try to find a way to keep Trump in power despite his loss to Joe Biden in the 2020 presidential contest.
“[The ‘advice of counsel’ argument] has its limits. As a lawyer, I can’t tell my client: Look, there’s this obscure, ancient law that I found that says you can kill your wife. If the client goes out and kills his wife, it doesn’t really work if the client turns around and says, ‘Well, wait, my lawyer told me I could do that,’” says Steven Groves, who used to work as an attorney and then as a spokesman in the Trump White House.
“But as for Trump’s current situation, is ‘advice of counsel’ something a judge or a jury would be receptive to? At what point is a client not permitted to rely on the advice of counsel? For what they are likely going to charge Trump with, the former president is going to say he lacked the criminal intent that [the Justice Department] says he had— he is going to likely argue in court that all he did was listen to the professional legal analysis of his array of lawyers, and that is what he acted on,” Groves continues.
Trump’s penchant for blaming aides for his legal troubles has been something of a go-to strategy for the former president.
…Trump and his advisers had previously sought to put some distance between themselves and his former chief of staff Mark Meadows, with some close Trump associates painting the once-top Trump aide as a potential “fall guy” for Jan. 6. As congressional investigators on the Jan. 6 committee scrutinized Meadows last summer, Trump pointedly told associates that he wasn’t always aware of his chief of staff’s activities in the run up to the deadly Capitol assault.
Meadows and Giuliani have been rumored-- very publicly, so impossibly for Trump to not know-- to have already turned against Trump and this “strategy” is likely to be laughed out of court… except perhaps in Aileen Cannon’s court room, which is less relevant now that the action is going to be in DC. "The lawyers made me do it" have worked on half an episode of Suits, but it's not going to hold up for Trump.
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