Sam Bankman-Fried, Trump plan to use same rare legal defense

FTX founder Sam Bankman-Fried and Donald Trump may both use a similar, and uncommon, trial defense — that they shouldn’t be held accountable for their alleged crimes because they were just following their lawyers’ advice.

The advice-of-counsel defense is rare because most people don’t consult an attorney before breaking the law, former federal prosecutor Nancy DePodesta told The Post.

“Oftentimes criminal defendants have not utilized legal services prior to an indictment. So I don’t think it’s a defense that we frequently see,” she said.

This defense is most often used in white-collar crime cases, she said.

John Lauro, a lawyer for the former president — who’s charged in federal court for allegedly trying to overturn the 2020 election result — said Trump, 77, acted on the guidance he got from constitutional expert and lawyer John Eastman in asking former Vice President Mike Pence to put on hold Congress’ count of presidential electors so states could check any voting irregularities.

Lauro said on Fox News that everything the former commander-in-chief tried “was done with lawyers giving him advice.” 

Meanwhile, earlier this month, lawyers for Bankman-Fried indicated they also plan to raise the advice-of-counsel defense at his Oct. 2 trial, where he faces allegations he defrauded customers of the defunct cryptocurrency exchange FTX to fund a lavish lifestyle and back risky investments at FTX-connected hedge fund Alameda Research.

The alleged crypto crook’s lawyers said the Fenwick & West LLP firm “had provided legal advice to FTX and Alameda on numerous topics that are directly related to the conduct alleged in the indictment,” according to a letter filed in court Wednesday.

DePodesta said she doesn’t think the advice-of-counsel defense will work in Trump’s case since lawyers were charged alongside him — and because the indictment “anticipates” Trump using the defense when it claimed he didn’t like the legal input he was getting, so he searched for lawyers who agreed with him.

The case “lays out various attorneys and legal advisors who essentially told Trump that the election was lost and there was no fraud,” DePodesta said. “Instead, at least according to the indictment, Trump pivots and seeks out counsel who are going to tell him what he wants to hear.”

“You can’t go out and seek bad counsel in order to do something unlawful,” she said.

As for SBF, the Fenwick firm has been sued in two cases — one from earlier this month — alleging it colluded with Bankman-Fried.

“If an attorney is complicit in the wrongdoing, it undermines any advice-of-counsel defense,” DePodesta asserted.

In Bankman-Fried’s case, it’s still too soon to tell if the strategy will work because the context of the legal advice hasn’t come to light yet, DePodesta said, noting there are many unanswered questions.

“It’s not fleshed out enough,” she added. “We don’t know what, if any, advice was sought and we don’t know what the advice was that was given.”

“Was it SBF who went to get this advice himself or was it others? What was the nature of the advice?”

Even if it’s a weak defense in either case, “If you think it has even some level of merit, I think you’re going to pursue it because that could resonate with a member of the jury,” DePodesta added.

Both Trump and Bankman-Fried have pleaded not guilty in their cases.

With Post wires