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Verdict in the hush money trial against Trump in New York

After closing arguments Tuesday, former President Donald Trump took to social media to repeat his specious complaint that Judge Juan Merchan prevented him from pursuing a particular defense in the hush-money trial against him.

Trump wrote on his Truth Social platform: “THE BIGGEST CASE I HAVE EVER SEEN FOR TRUSTING THE COUNCIL, AND THE JUDGE WILL NOT LET ME, FOR ANY REASON, USE THAT AS A DEFENSE IN THIS RENEWED PROCESS. ANOTHER TERM, ADVICE FROM THE COUNCIL DEFENSE!” He added in another post Wednesday morning: “RELIANCE ON THE COUNCIL (COUNCIL ADVICE) NOT PERMITTED BY THE TRADER, A FIRST.”

Facts first: Trump’s claim remains misleading. He didn’t mention, againthat the reason Merchan will not allow Trump’s legal team to rely on “advice of counsel” during the trial is that, when Trump was asked before the trial whether he would use an “advice of counsel” a counsel’s defense, his lawyers told Merchan he wouldn’t do that.

A defense based on an opinion of counsel generally requires the defendant to waive attorney-client privilege. Trump’s lawyers told Merchan before the trial that instead of a “formal” defense of “advice of counsel,” Trump wanted to use a different defense in which he would not waive attorney-client privilege but still “evidence would elicit information about the presence, involvement and advice of attorneys in relevant events giving rise to the allegations in the indictment.”

Merchan rejected this proposal. He wrote in March: “Allowing the said defense in this case would, in effect, allow defendant to rely on the very defense on which he has stated he will not rely, without the attendant liabilities that associated with it. The result would undoubtedly be to confuse and mislead the jury. This Court cannot endorse such a tactic.” Therefore, Merchan ruled that Trump could not invoke or even suggest a “presence of counsel” during the trial.

Last week, during courtroom discussions about Merchan’s instructions to the jury, Merchan rejected an attempt by Trump’s defense to invoke the “involvement of counsel.” Merchan noted that he had already made his position on the proposal clear.