An advice-of-counsel defense is „not easily invoked and has far-ranging consequences and risks,“ said Tony Alexis, a former federal prosecutor.
NEW YORK — President Donald Trump offered a simple defense Thursday to accusations he broke campaign finance law by directing attorney Michael Cohen to orchestrate hush-money payments to conceal Trump’s alleged affairs: He was following terrible advice from a bad lawyer.
“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’” Trump wrote on Twitter.
The advice-of-counsel defense is a real thing. But Trump’s ability to use it, if he were ever formally accused of a crime, is far from certain. And it could be risky.
“People talk about advice-of-counsel as a defense more than it’s actually asserted, and it’s rarely successful,” said Dane Ciolino, a constitutional law professor at Loyola University in New Orleans.
Courts have held that the defense applies when a person has gone to a lawyer to ask about whether something is legal, disclosed all material facts, and then relied in good faith on the professional’s advice that no laws were being broken.
The illegal act in this case involves payments made to porn star Stormy Daniels and Playboy centerfold Karen McDougal to keep them from talking about sexual encounters they say they had with Trump while he was married.
Federal prosecutors in New York say the payments amounted to illegal campaign contributions because they were made at the height of the 2016 election season to keep voters from learning of Trump’s alleged infidelities.
