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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Criminal Action No. 23-257 (TSC) 

UNITED STATES OF AMERICA,

v.

DONALD J. TRUMP,

Defendant.

OPINION AND ORDER

The government has filed a Motion for Formal Pretrial Notice of the Defendant’s Intent 

to Rely on Advice-of-Counsel Defense. ECF No. 98 (“Motion”). That Motion asks the court to 

order that by December 18, 2023, Defendant “provide notice in court of his intent to assert” an 

advice-of-counsel defense at trial. Id. at 1. For the reasons set forth below, the court will 

GRANT in part and DENY in part the Motion. 

The advice-of-counsel defense requires a defendant to “introduce[] evidence that (1) ‘he 

relied in good faith on the counsel’s advice that his course of conduct was legal,’ and (2) ‘he 

made full disclosure of all material facts to his attorney before receiving the advice at issue.’” 

United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 2019) (quoting United States v. 

DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)). By invoking the defense, the defendant waives 

attorney-client privilege and must therefore disclose to the government (1) all “communications 

or evidence” the defendant intends to rely on to establish the defense, and (2) any “otherwiseprivileged communications” the defendant does “not intend to use at trial, but that are relevant to 

proving or undermining” it. United States v. Crowder, 325 F. Supp. 3d 131, 138 (D.D.C. 2018) 

(emphasis in original) (citation omitted); see United States v. White, 887 F.2d 267, 270 (D.C. Cir. 

1989). 
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The Federal Rules of Criminal Procedure and Local Criminal Rules do not expressly 

require advance notice of the advice-of-counsel defense. But because waiting until trial to 

invoke the defense—and comply with the disclosure obligations it triggers—could cause 

disruption and delay, some district courts have concluded that they nonetheless have inherent 

authority to order defendants to provide advance notice if they intend to do assert the defense. 

See, e.g., Crowder, 325 F. Supp. 3d at 138; United States v. Dallmann, 433 F. Supp. 3d 804, 812

(E.D. Va. 2020). Other district courts, however, have concluded that they lack that authority. 

See, e.g., United States v. Alessa, 561 F. Supp. 3d 1042, 1049 (D. Nev. 2021); United States v. 

Wilkerson, 388 F. Supp. 3d 969, 974–75 (E.D. Tenn. 2019).

In this case, the court need not decide whether it has authority to order Defendant to 

provide notice, because he “agrees to provide notice to the prosecution of whether he intends to 

pursue a formal advice of counsel defense at the time jury instructions are due, which is currently 

January 15, 2024.” Opp’n to Motion, ECF No. 112, at 13. Defendant also proposes, however,

that rather than requiring disclosure immediately after he provides that notice, the court “should 

solicit briefing to determine a reasonable schedule” for that disclosure, depending on the scope 

of the Defendant’s requested jury instruction on advice-of-counsel defense. Id. But Defendant 

cites no precedent for that procedure, and it runs contrary to the standard practice of requiring 

that disclosure accompany notice, since that notice waives attorney-client privilege. See, e.g., 

Crowder, 325 F. Supp. 3d at 138–39 (requiring “notice and discovery” to be provided together); 

Dallmann, 433 F. Supp. 3d at 816 (same). Indeed, notice without disclosure would have little 

practical value, and would inject undue delay into the parties’ pretrial preparations.

Accordingly, the government’s Motion for Formal Pretrial Notice of the Defendant’s 

Intent to Rely on Advice-of-Counsel Defense, ECF No. 98, is hereby GRANTED in part and 
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DENIED in part. As he has consented to do, Defendant shall provide formal notice whether he 

intends to assert an advice-of-counsel defense by January 15, 2024. If Defendant does provide 

affirmative notice of that intent, he must also provide the required discovery to the government at 

that time: “any communications or evidence [Defendant] intend[s] to use to establish the 

defense,” and “otherwise-privileged communications that [Defendant does] not intend to use at 

trial, but that are relevant to proving or undermining the advice-of-counsel defense . . . in their 

entirety.” Crowder, 325 F. Supp. 3d at 138 (emphasis in original) (citation omitted). 

Date: November 8, 2023 

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge