Thread by @lawofruby

NEW: As ordered by Judge Merchan, Trump disclosed today that he won't advance a "formal advice-of-counsel defense"--but that he still plans to elicit evidence of his lawyers' participation and/or involvement in the "underlying conduct giving rise to the charges." The problem? 1/

The very first case he cites for the proposition that this "informal" or advice-of-counsel lite evidence and argument is cool -- the Sam Bankman-Fried case overseen by Judge Lew Kaplan of the E. Jean Carroll trials -- is not accurately represented. 2/

In the Bankman-Fried case, his criminal defense team intended to show that FTX and/or Alameda lawyers' involvement in certain decisions were evidence of Bankman-Fried's own good faith and lack of intent. 3/

But after reviewing some prior cases, Kaplan reasoned that there were meaningful concerns with that approach. 4/

"The risk of confusion and unfair prejudice to the government were defendant to focus on the presence or involvement of lawyers [for the companies] -- without any degree of specificity about what they were present for or involved in ..." 5/

... what their tasks were, what exactly they knew, and what the defendant knew about what the lawyers knew and were doing - is palpable." 6/

On the other hand, Kaplan acknowledged there could be "circumstances in which lawyer presence, involvement, or advice known to the defendant at the time of his alleged misconduct might have a real bearing on whether he acted with or without fraudulent intent." 7/

So what did he do? He barred Bankman-Fried from discussing the lawyers' involvement or presence in his opening statement & "offering any evidence, argument, or testimony on those subjects absent prior notice to the Court and the government outside of the presence of the jury." 8/

Ultimately, at trial, Bankman-Fried won one such fight but lost another about the lawyers' involvement in drafting certain legal documents because it would "falsely imply[] the lawyers, with full knowledge of the facts, blessed what the defendant’s alleged to have done." 9/

But from reading the Trump team's filing and without any further research, you would have no idea that the Diet Counsel defense Trump is proposing was not wholeheartedly endorsed by Judge Kaplan either in the opinion they cite or during the trial. Stay tuned. FIN.