Can A Prosecutor Refuse All Abortion Cases? If Indicted, Can Trump Rely On The Advice of Counsel?

About 100 prosecutors nationwide have said they will not prosecute abortion cases. Yet their client is the state and if the state has made abortion a crime, can a local prosecutor ethically refuse to enforce the law?

Also, the question has been asked whether, if indicted, Trump could rely on the advice of counsel that his conduct was legal, and thereby create a reasonable doubt about his criminal intent. What is the advice of counsel defense and could it work here?

Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

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Reference List for Podcast #18: Can A Prosecutor Refuse All Abortion Cases? If Indicted, Can Trump Rely On The Advice of Counsel?

June 24, 2022, Fair and Just Prosecution Statement on Abortion, as updated July 25, 2022, available by searching: “Joint Statement from Elected Prosecutors on Abortion”

Johnson v. Pataki, 229 A.D.2d 242 (1st Dep’t 1997)

United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (discussing the advice of counsel defense)