In a new motion filed by Special Counsel Jack Smith in the January 6 case against Donald Trump, the prosecutor accused a “a family member of the defendant” of withholding information.
The Tuesday filing states that during the course of the government’s investigation, “at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign.”
“These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant,” the filing said.
However, Mr Smith never named the Trump family member.
The New York Times reported in February that the former president’s daughter Ivanka Trump and his son-in-law Jared Kushner were subpoenaed by Mr Smith to testify before a federal grand jury about Mr Trump’s alleged plans to subvert the 2020 election in his favour.
The filing notes that Mr Trump, and his attorneys, discussed his intention to use the “advice-by-counsel” defence in trial on numerous TV appearances.
Mr Smith warned that “when a defendant invokes such a defense in court, he waives attorney-client privilege for all communications concerning that defense, and the Government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.”
The special counsel urged federal Judge Tanya Chutkan to require Mr Trump to disclose his intention to raise the so-called “advice-of-counsel” defence, as well as “produce exhibits in support of an advice-of-counsel defense,” by 18 December.
If used, this pretrial notice will provide Mr Smith’s team time to review the new discovery documents before the trial is set to begin in March 2024 without delaying the trial, the special counsel argued.
Judge Chutkan granted Mr Smith’s request on Tuesday.
