25-3=22: Diminishing Representations

Less than a day after Sidney Powell pleaded guilty in Georgia, but before he made his curious comments that she would be conflicted from representing him, Trump responded to DOJ’s bid to require him to reveal any advice of counsel defense by mid-December, when trial exhibits are due.

In the DOJ motion, they claimed that Trump knew what had been withheld from DOJ under privilege claims.

[T]he defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”).

Trump appears to disagree with DOJ’s claim that he knows the universe of materials withheld on privilege grounds. He wants DOJ to share with him everything that DOJ knows about over which a privilege claim has been made.

He even suggests that some of these 25 people, potentially including Powell, were not claiming his was the privilege they were protecting.

The prosecution claims that 25 witnesses have invoked privilege. Presumably, the prosecution also received privilege logs or other privilege invocations in response to document requests. The prosecution should be required to disclose these 25 witnesses, along with all of the logs in which the prosecution is interested. At this time, defense counsel has not been able to fully review the voluminous discovery in this matter, which is indeed impossible within the schedule set by the Court.

At a minimum, the prosecution should (1) identify all materials within their discovery production that they assert are attorney-client privileged information, work product, or are otherwise protected; (2) describe the basis for the assertion that the materials are protected and who holds the privilege with respect to those materials; (3) identify the 25 witnesses referenced in the motion, or any other witnesses, that have asserted the attorney-client privilege or who the prosecution believes possess attorney-client privileged information; and (4) identify all materials not within their discovery production that they believe the defense would be required to produce regarding an advice of counsel defense, including the source of the materials.

His filing even made an obscure comment, taunting that DOJ would need to turn over “what it recovers” from previously privileged witnesses and records.

6 The prosecution does not seem to recognize that if the defense produces privileged discovery, the prosecution then has an obligation to produce what it recovers from its investigation of the previously privileged witnesses and records.

That was Friday. Also on Friday, Kenneth Chesebro pled guilty in Georgia. And Jenna Ellis has (unsurprisingly, given that Trump refused to pay for her defense) also pled guilty.

Just for reference, here are the privilege logs that Rudy and Bernie Kerik submitted in the Ruby Freeman case; between the two of them, Jenna appears over 150 times, including on a bunch of Dominion-related communications.

There were clearly 25 lawyers in the know. But Trump seems to have some doubts whether he knows who those lawyers were representing.

As more of them plead guilty, he may have more urgency in wanting to learn the full details of their privilege claims.

Update: Folks are disputing how useful Jenna will be as a cooperating witness. I agree with NYT: she’s more valuable than Ken Chesebro, and possibly even than Sidney Powell.

Here are the people that she at first tried to claim privilege over with the January 6 Committee, only to invoke the Fifth Amendment:

71 replies
  1. Rugger_9 says:

    The three that have pleaded so far are the ones very involved in the false elector mission, and are obligated to sing if asked by SC Smith, for example. That is not good news for Defendant-1 and this crack in the armor is exactly what SC Smith is looking for.

    Not only can they discuss the mechanics of the coup, but also to the state of mind and potential mens rea. It’s harder for Defendant-1 to claim ignorance that he lost when there will be a series of witnesses that will testify the opposite is true and none of them will be privileged.

    • vigetnovus says:

      I guess the next question is how can Jack Smith compel testimony from these flipped lawyers if Trump refuses to waive Atty-client privilege by dropping them from the “advice of counsel” defense. Presumably, in the GA case, these lawyers will only testify to things known to Fani Willis. Smith’s team I would think may know of other information that these lawyers could testify to that may be in the privileged materials. Not sure Fani Willis’ does.

      • RitaRita says:

        Crime-fraud exception to attorney-client privilege would allow for their materials and statements to be turned over, I would think.

        • Rugger_9 says:

          I think it would as well, and the guilty pleas establish that a relevant crime was indeed committed. That’s why the (officially anonymous) co-conspirators were named as such but not charged. But, IANAL.

    • Unabogie says:

      Moderator’s note: In response to your question (which will not be shared here): you’re in auto-mod until you stop harassing moderation. Specifically, JAQing off — just asking questions or sealioning — is not acceptable. I suggest you take a seat in the shade and just read for a while rather than participate in comments. /~Rayne

      [bmaz: LEAVE THIS UP pour décourager les autres]

      • Allagashed says:

        I learned something again today; so thank you. Sealioning and JAQing off were activities unknown to me until I looked them up just now. Sitting in the shade, reading, were things I understood.

    • blueedredcounty says:

      Back in March, Jenna was censured in CO, but not disbarred.
      There was a debate in the comments on the post here over how severe the impact would be to her going forward.

  2. scroogemcduck says:

    Between this news, Cohen’s evidence in NY today, and the proximity to the full moon, the late-night Truth Social howling will be quite something tonight.

  3. GSSH-FullyReduced says:

    How does ‘learning the full details of their privileged claims’ help him?
    More fodder for case delays?
    Identify more disloyalty to launch more revengeful attacks?
    Taint more jury pools?

    • Spencer Dawkins says:

      Giggles to self. My internist mentioned that Ellis had pled out during my appointment this morning, and the Shakespeare paraphrase was the first thing that popped into my mind. Thanks for posting it here first. 😁

  4. Cosmo Lecat says:

    The strategy of the Fulton County prosecutors is working great so far.

    Some said they made mistakes in the indictment that would allow Meadows and perhaps the whole case to be transferred to federal court. But the prosecutors prevailed.

    Some say they charged too many defendants, but more than a fifth have already taken plea deals. The floodgates have opened. Few if any low level defendants have 6 or 7 figure sums to waste on legal representation and months to sit in a courtroom, while risking a 5 year minimum sentence, when ultra-lenient plea deals are being handed out like Halloween candy. Each flip strengthens the case against those who plow on to trial.

    Some said it would be unwieldy to try 19 defendants in one courtroom, but if the pattern holds, it my only be a handful left by the time the trial begins. The judge knows this. That’s how RICO cases go in Georgia when there’s a team of experienced prosecutors. Cheers.

    • bmaz says:

      That is not “some”, you dipshit. That is me. Have the courage to say so. And, yes, it is still thus. A plethora of jacked up forced pleas do not change that.

      • P’villain says:

        Eh, I think there was widespread incredulity when Willis said she intended to try all 19 simultaneously, beginning in less than a year. And yeah, I agree that cutting the number to 15, or 10, or even a half-dozen, doesn’t change that assessment.

      • Cosmo Lecat says:

        Bmaz, actually i was not thinking of you at all. I didn’t recall your specific opinion on the matter of including charges that some said would lead to Meadows succeeding in moving it to federal court. I was checking out Politico, The Hill, Just Security, Lawfare, Raw Story, TV lawyers and especially the commentary I read on Twitter before I quit the bloody site. Many people were convinced the prosecutors had over-reached. Frankly, I was concerned, especially when the federal judge asked for additional briefing. In the end, I thought the judge’s decision was very well reasoned and it turned out well.

        For me, this is not a contest between pro- and anti-Fani Willis factions. I’m pro-democratic institutions and rooting for the Fulton County prosecution team to succeed if the facts support their case.

    • RobertS721 says:

      It’s nice to think so, but there is a long, long way to go, and no guarantee that anybody is going to be convicted for their part in the scheme.

      We’ve still got 16 defendants left, with motions and appeals to work through. Even if half of them plead out, it’s going to be complicated, multi-month trial.

      The core group that’s indicted for the fake electors scheme is 8 people, mostly made of of elected politicians and lawyers. We’re nowhere close to knowing how this is going to go.

    • Norskieflamethrower says:

      Hang in there Cosmo, I’m sure you expected to get an ad hominem Trumpian response but don’t let that drive you away.

    • flounder says:

      My issue with BMAZ was his inferences that Georgia State Attorney General Chris Kise (acting as the “state”) would be acting in the interests of Georgians like Ruby Freeman if it wasn’t for small time local DA Fani Willis “usurping” the case. There’s absolutely zero evidence anything like that was churning in the state. Absolutely zero.

      • bmaz says:

        Well, “flounder”, my “problem” is that the GA AG, with the actual name of Chris Carr, not Chris Kise (a Trump lawyer), never delegated anything. Churn all you want, but don’t bullshit people. There is actually a way this is supposed to work. But so many have their heads up their ass because Trump they are borderline insane.

        • Susan D Einbinder says:

          Ok, how? Please tell us alternative legal approaches that would have worked (aside from Merrick initiating cases right away?).

        • Susan D Einbinder says:

          I’m sorry, I meant to type Merrick Garland – not refer to him only by his first name; not a sign of disrespect, just late-night exhaustion.

        • flounder says:

          Chris Carr indeed. And exactly because everyone is borderline insane from Trump as you say, he’s lining up to be a fact witness in a case rather than a prosecutor, where he never took a single overt step to investigate. Ruby Freeman wasn’t going to get any justice at the state level. It was forfeited down the line to someone who gives a shit, which is the minimum people are asking out of their representatives.

    • Tech Support says:

      Somehow I suspect that sports fan superstition isn’t powerful enough on it’s own to cost Ted re-election but one can dream.

      • sohelpmedog says:

        The is a good chance that the New York Mets victory in the 1969 World Series was the difference that enable John Lindsay to be reelected New York City Mayor. Ya never know.

      • pH unbalanced says:

        Especially since they lost to the Rangers. Dual fandom is pretty common between those teams (since they were in different leagues until fairly recently).

        • Rugger_9 says:

          It’s not always been the case. When Jose Canseco (there’s a name from the past) blew out his arm pitching for the Rangers in one inning he went on the IR for the rest of the year. The Houston press gleefully posted Canseco’s pitching line for the rest of the year too.

  5. vigetnovus says:

    I’m confused. What is Trump’s counsel fishing for here? It sounds like Jack Smith’s team has already turned over the privilege logs for all of these 25 lawyers, is it the case that the lawyers are just too lazy to go look them up? I’m sure they’re relatively easy to find among the “voluminous” material.

    I wonder if this is an end-around the protective order in the case, trying to goad DOJ to put in writing the names of the 25 lawyers in a filing to warn these individuals that Trump is about to get the privileged material from the lawyers so they better get their stories straight if there’s any inconvenient material that might come out in those productions. Or maybe it’s more like a way to get those lawyers to tell Trump’s counsel to drop them from the advice of counsel defense plan, so Smith’s team doesn’t get the reciprocal discovery.

    To me, this seems a big risk to Trump and those lawyers, because once Trump waives privilege here, it could allow Smith’s team to follow up leads that were previously foreclosed to them. And if any of those leads turn up evidence of further crimes with Trump and/or other putative defendants, the SCO can go the GJ and get subpoenas to compel further production of atty-client privileged material.

    Finally, a related legal question: Once Trump waives privilege and asks the SCO for and receives privileged info that the filter team has identified relevant to his advice of counsel defense, must that formerly privileged material be immediately turned over the SCO investigative team under discovery obligations? Or can Trump’s team say, “actually on further review, naw, we don’t want to invoke advice of counsel here, so we don’t have to produce it?” I guess the question is does the waiving of the privilege automatically mean Smith’s team is entitled to look at the material, or do they have to subpoena it if they think it relevant to their ongoing investigation, assuming Trump’s team gives assurances they are not going to invoke advice of counsel defense with that lawyer?

    • emptywheel says:

      Your last two paragraphs are all reasonably good objections to the DOJ motion that Trump raises in his response.

      • vigetnovus says:

        Well, yeah. But I see the DOJ motion as more of a warning shot to Trump: You sure you wanna go there bro?

        Not surprisingly, Trump wants to have his cake and eat it too. But I think DOJ is right here, if Trump wants to use this as a viable defense, then he needs to turn over any formerly privileged info he’s going to use at trial. And once privilege is waived, it’s waived.

        I guess the bigger legal question is when does the waiver attach? Is it when Trump asks for and receives privileged material from DOJ filter team? Or is it when Trump declares exactly what evidence he will use (or might use) at trial? I foresee a lot of litigation about this, and if it’s a sixth amendment issue, that can be interlocutory.

      • Alan_OrbitalMechanic says:

        Also, a distinction needs to be made between “entitled to look at” versus “can enter it into evidence.”

        I am pretty sure Smith has seen all sorts of stuff that is helpful in putting the case together, but he just can’t use it in court.

        • EuroTark says:

          One of the issues related to “entitled to look at” is that it quickly leads to parallel construction, also known as evidence laundering.

      • David Brooks says:

        But they also serve the goal of delaying the federal trial (or at least the end of it) until after the election, which in his mind Trump HAS to win.

        pace bmaz, but it’s beginning to look like the Georgia case as a key backstop.

  6. Matt Foley says:

    Hey look, there’s a Fulton County in PA, too!

    From Phila. Inquirer:

    And the Michigan lawsuit alleges that Bill Bachenberg orchestrated analyses of voting machines in Fulton County, Pa. The complaint says he hired XRVision, but refused to pay the company after it failed to uncover election fraud. The state decertified Fulton County’s voting machines for allowing a third-party company to access them, and the state Supreme Court sanctioned the county in April for its actions.

    “This report did not find any evidence of election fraud in the 2020 election, and Defendants were furious,” the complaint states about Lambert and Bachenberg.

    XRVision contended that Lambert and Bachenberg demanded that the company instead write a report stating that there were “cheat codes” in the software and that election systems had been hacked. The company refused, and Bachenberg refused to pay the $550,000 he owed for the Pennsylvania and Michigan studies, the suit alleges.

    Earlier this month, when a process server delivered a copy of the lawsuit to Bachenberg at Lehigh Valley Sporting Clays outside a campaign event for GOP congressional candidate Kevin Dellicker, he allegedly assaulted the messenger.

    The process server, a former constable, wrote in a court filing that Bachenberg kept trying to grab his phone out of his hand, then punched and shoved him.

    “He then pushed me and I twisted my left hip which is healing from a third replacement,” the process server wrote, adding that he required treatment at St. Luke’s Hospital.

    • bmaz says:

      And you think this garbage is positive? And at what point should little local bullshit control national election law?

      • Deadhead says:

        Violations of national election law are not charged and prosecutors do not control laws. Your lack of professionalism is stunning, especially for an experienced old timer.

        • bmaz says:

          Thanks. I will deal just fine, “old timer”. But your first sentence betrays things. When should local prosecutors control anything? After 9/11, should a pissant local prosecutor in Yavapai County have that prerogaive? How small of a local county hack do you think is too small to decide things for the nation?

        • Deadhead says:

          Control things? Pretty broad allegation. Is bringing indictments under state law controlling things? How could local prosecutors from Yavapai County or anywhere else control things?
          You seem to be saying that if a 9/11 conspirator is accused of violating a state law in furtherance of the attack (for example submitting fraudulent documents) the conspirators shouldn’t be prosecuted in the county the crime occurred. What legal argument supports such a proposition?

        • bmaz says:

          You are full of shit, and oblivious. Do not understand the hypothesis. Every legal argument supports my view (And ones that have been “exposed” here of close to two decades). Just not that of people that have never spent one second practicing law.

      • Scott_in_MI says:

        This isn’t even about the GA prosecutions. Are you just that triggered by the words “Fulton County” now?

        • bmaz says:

          Yes. This is more than ruination of common law. And, yes, I understand quite well the stakes for the future. Do not think you or most do.

  7. Former AFPD says:

    A prosecution based on witnesses who are admitted liars usually presents a lot of opportunity for the defense and many headaches for the prosecution.

  8. earlofhuntingdon says:

    Regarding that updated list of people Ellis once tried to claim were covered by “privilege,” odds are good that Ellis did not have an A-C relationship with all or most of those folks. Nor did or could many of them work for Trump’s campaign. Nor is there any way most of those could be covered by EP. Was the communication even legal advice? And that’s before getting to the crime-fraud exception. So Trump’s in another world of hurt, all of his own making.

  9. earlofhuntingdon says:

    Regarding the SC’s motion that would require Trump to disclose whether he intends to use the advice of counsel defense, on page seven, DoJ cites three defenses that Rule 12 explicitly requires be disclosed, one of which is 12.2 – insanity. While not the reason DoJ would have cited that rule, it will surely get this touchy defendant’s goat.

    • earlofhuntingdon says:

      Then there’s this observation by DoJ, citing precedent, that is likely to come up: “The defense of advice of counsel necessarily fails
      where counsel acts as an accomplice to the crime.”

      Setting aside for a moment the hurdle of admitting evidence at trial, anecdotally, Trump fairly obviously lawyer-shopped, as he scoured the profession for “advice” compatible with his needs, and ignored contrary advice from the very lawyers whose job it was to give it to the President.

      • emptywheel says:

        which is why they keep saying, “we don’t think you’re entitled to A-C privilege.”

        They’ve named every lawyer whom he might invoke as a CC.


    • Savage Librarian says:

      Lately, in public, Trump has shown signs of cognitive decline. For example, he said that Obama is the current president and he said Orban is the leader of Turkey. It could be argued that this is part of an act on his part. But it seems like he has real cognitive issues.

      So speaking of diminishing, might there also be a possibility that Trump could be sentenced under diminished capacity guidelines if any case gets that far? As I understand it, this is different than an insanity defense.


      “insanity and diminished capacity | Wex | US Law | LII / Legal Information Institute”

      • CaptainCondorcet says:

        Trump would fire lawyers he hasn’t even hired before he ever allows any defense strategy around diminished capacity. His cult of personality demands he have no physical weakness. It’s why he lied on multiple documents about his weight.

  10. SunZoomSpark says:

    Tom Emmer drops out of Speaker race after TFG calls him a RINO!

    Emmer did vote to certify Biden (after questioning the election).

    OTOH, Don does seem to be enjoying Michael Cohen’s testimony in NYC.

    Party on GOParty!

    • Rugger_9 says:

      Another kiss of death endorsement from MyKev. Also, Defendant-1 was for Emmer before he was against him with prodding from Steve Bannon. I don’t see if anyone can make it to 217.

    • RipNoLonger says:

      So the loser from Queens can call someone a RINO when he is obviously:
      – RWC: Repuglicon When Convenient
      – Billionaire: Depending on which tax/auditing/banking org is asking
      – 215 pounds of muscle: not including the gut, the excess skin and flab. Brain weight is not significant
      – Most stable genius: in a universe of him and his sons – maybe.
      – Successful businessmen: YES – he’s shucked more people of their money than all carnies ever, combined.

  11. Rugger_9 says:

    The shoes are dropping like a tap dance revue. Mark Meadows is flipping to rat out Defendant-1 to SC Smith according to ABC, but I didn’t see anything about Georgia. If so, it would prove just how much Meadows looks out for ol’ Number 1 first. If this pans out, Defendant-1 is likely toast in GA and DC.



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