Wednesday, November 28, 2018

The Manafort bomb

[T]hat Mr. Manafort’s lawyers have been spilling the details of their client’s cooperation to Trump lawyers under the cover of an often-used but little-understood pact called a joint defense agreement — is shocking. The revelation is a potential catastrophe for everyone involved.

It’s a blow to Mr. Mueller’s team, because their questions to Mr. Manafort — repeated to Mr. Trump’s lawyers — may be a road map to at least part of the special counsel investigation. Mr. Trump’s lawyers can now adjust their defense, and the president’s responses, based on what they’ve learned about Mr. Mueller’s focus and what he knows or doesn’t know. And with their filing on Monday asserting Mr. Manafort’s dishonesty, the prosecutors lost him as a cooperating witness and can no longer pursue any theory relying on his testimony.

It’s a blow to Mr. Manafort, who will receive no sentencing credit for his brief cooperation. It’s a blow to Mr. Manafort’s lawyers; no federal prosecutor will ever trust them again. And it’s a blow to Mr. Trump, who has overplayed his hand, because Mr. Mueller may now be able to delve into the Trump lawyers’ conversations with Mr. Manafort’s lawyers.


Under normal circumstances, if a lawyer reveals what a client said in confidence, or reveals strategy and analysis of a case, that information is no longer confidential, and the government can compel testimony about it. A joint defense agreement allows lawyers for people with a common interest in a case to share what they learned from clients without that information losing its confidential nature. Because everyone in the agreement has a common interest in defending the case and has agreed to keep the information secret, the theory goes, sharing the information within the group doesn’t waive its confidentiality.

Joint defense agreements are common in white-collar investigations because they allow lawyers to figure out two crucial things: what happened and what the prosecutor knows about it. Mr. Trump’s lawyers have made vigorous use of such pacts — we’ve learned he has them with Mr. Manafort and with the Roger Stone confidant Jerome Corsi.

But the pacts almost always explicitly require the parties to withdraw from the agreement immediately if they cooperate with the government. After all, once someone begins to cooperate, his interests are no longer common with the other members of the joint defense agreement — by definition, they’re now adverse.


So it doesn’t matter whether or not Mr. Manafort explicitly withdrew from his deal with Mr. Trump, because once he began cooperating — or, at least, pretending do — the legal theory supporting the agreement collapsed. Because Mr. Manafort no longer had, on paper, a “common interest” with Mr. Trump, his lawyers’ communications with Mr. Trump’s lawyers could no longer be seen as cloaked with any expectation of confidentiality.


Mr. Mueller can, and perhaps should, try to find out what Mr. Trump’s and Mr. Manafort’s lawyers said to one another about their respective clients after Mr. Manafort began cooperating. The resulting legal battles over privilege would be spectacular.


To the extent he trusted Mr. Manafort and revealed details of his investigation, [Mr. Mueller] made a mistake. Of course, the president’s team — never a font of shrewd criminal defense strategy — may have made a mistake, too, if they incorporated Mr. Manafort’s lies into their own written responses to Mr. Mueller’s questions. That could expand the scope of Mr. Mueller’s investigation to include new false statements to the F.B.I., the downfall of several of his targets.


Mr. Mueller’s mistake is understandable. Mr. Manafort’s lawyers’ communications with Mr. Trump’s lawyers are shocking and unprecedented, a brazen violation of criminal defense norms notable even in an investigation full of them. They are consistent with only one conclusion: Mr. Manafort and his lawyers seek a presidential pardon, not a reduced sentence through sincere cooperation.

  Ken White @ NYT
"Ken White, a former federal prosecutor, is a criminal defense lawyer and First Amendment litigator at Brown White & Osborn in Los Angeles, and a host of “All the President’s Lawyers,” on radio station KCRW." - NYT opinion page

Interesting change of professions for Ken White.

I still wonder about those 30+ sealed indictments, and possible - or probable - state law violations awaiting Manafort and Trump.

America stepped in some deep shit when it elected Trump.

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