In an order granted last week by Judge Tanya Chutkan, Jack Smith requested that Donald Trump be required to disclose whether or not he would use an “advice-by-counsel” defense in his upcoming trial regarding January 6, 2021.

The reason for the request is that Trump would then waive his right to attorney-client privilege and Smith could do further investigation and be allowed to see communications that were previously shielded by that privilege.

In his filing last Tuesday, Smith said that “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.”

Many are speculating that this could be Ivanka Trump, who was subpoenaed along with her husband Jared by the Special Counsel. But Smith has so far not named the mystery witness.

In what seems like a statement almost directly aimed at Trump, Smith discussed what would happen if Trump used the advice-by-counsel defense:

“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.”

Smith remarked in the filing that Trump and his attorneys had publicly talked about using that defense during his trial in numerous television appearances.

Trump’s legal team has so far bumbled their way through the process of nearly every stage of each of his indictments, including failing to ask for a jury trial in New York. They also asked that the DC case be held in 2026 to provide sufficient time for Trump to gather an “adequate” defense. They cited a case in which the convictions of 9 young black men accused of raping two white women were overturned due to the men not being given enough time to mount a defense.

Those men were given about a week, while Trump has more than six months to formulate his own.

His lead attorney, John Lauro, even admitted that Trump had tried to subvert the 2020 election by asking his Vice President to “pause the voting” as he certified the results of the election — after Lauro admitted that Trump knew the results on the night of the election.

I don’t think there’s any doubt that Trump will finally be held to account. But if he maintains attorney-client privilege, we may never find out who the mystery family member is, unless Smith charges them after Trump’s own trial.