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Nov 29 2018

Professional Courtesy

It’s why Sharks won’t bite.

The late breaking news from yesterday was the admission by Kevin Downing (Manafort’s lawyer) and Rudy Giuliani (Trump’s lawyer) that they continued to participate in a Joint Defense Agreement (basically information sharing) for months after Manafort agreed to co-operate with the Mueller investigation.

Normally, while Prosecutors hate it, this is allowed because there is a convergence of interests between the principals who are alleged to have participated in the same crime. There are plenty of good and legitimate reasons to be represented by separate Counsel, among them disagreement about what legal strategies to pursue (see My Cousin Vinnie) or issues of capability or comfort (also My Cousin Vinnie). The Defense Attorneys (Court Officers after all) have an obligation to prevent the commission of any further crimes like Witness Tampering or Obstruction of Justice. These discussions take place under the protection of Lawyer/Client Privilege.

That does not apply in this case. The convergence of interests ceased the moment Manafort entered into his co-operation agreement. At that time he was legally contracted to provide information about the criminal activities of the other members of the conspiracy AND canceled any Joint Defense Agreement that may have been in place.

Now Giuliani brags that Manafort acted as a spy on the Mueller inquiry, feeding Mueller disinformation and lies while faithfully reporting back the subjects of his interviews and the specific questions asked. The purpose of this was to gauge the progress and direction of the investigation and possibly misdirect Mueller.

Well, that’s not just ethically wrong, it’s highly illegal- Obstruction of Justice on the part of the lawyers.

It’s a bonehead play that shreds Lawyer/Client Privilege, makes the Attorneys witnesses subject to subpoena for both documents and testimony, and exposes them to prosecution not only for Obstruction, Tampering, and Suborning Perjury but also Aiding and Abetting and Criminal Conspiracy.

Oh, and they can be Disbarred.

I know someone who’s worked with Rudy professionally and they are not at all surprised. He’s always been this stupid. There are other lawyers involved, Downing, Emmet Flood, who should know better.

The stunning implications of the Manafort-Trump pipeline
By Harry Litman, Washington Post
November 28, 2018

Following the implosion of Paul Manafort’s cooperation agreement with special counsel Robert S. Mueller III , a lawyer for President Trump casually announced that Manafort’s lawyers had been briefing Trump’s lawyers about his sessions with the Mueller team all along.

This revelation, far from routine, in fact is jaw-dropping — and it has significant legal and political implications.

First, and least, it represents another breach of the demolished cooperation agreement that Manafort entered into to avoid the expense and near-certain conviction in a second trial.

Some defense attorneys have asserted that it is common for cooperating witnesses to share information with other suspects (as we know the president is here) or putative defendants. Not so. Once a witness enters into a cooperation agreement with the government — which he does for the very valuable consideration of a potential reduction in sentence — he has agreed contractually to a full, no-holds-barred provision of information. The government in turn will frame questions and possibly share evidence with the witness, all of which reveal the government’s thinking. The universal understanding is that the witness will not run back and reveal the government’s case to potential suspects.

A witness is normally free to talk to defense attorneys if he chooses. A cooperator is not (and that holds whether it is expressly spelled out in the agreement).

Second, whatever Team Trump may assert, the conversations between some combination of Manafort, Trump and the lawyers for both of them were not privileged, and Mueller is entitled to know their contents.

Defendants are entitled to enter into privileged conversations with their own lawyers, and the government cannot force the attorney to reveal them. This is entirely proper and part of the constitutional guarantee of effective assistance of counsel. A corollary to this principle permits co-defendants and potential defendants to share certain information — essentially the same information that would be shielded by the attorney-client privilege for either of them — on the grounds that they have a “common interest.” This interest is generally set out in a joint defense agreement, or JDA, which confirms the umbrella of covered discussions.

Crucially, however, the JDA can operate only among parties who , in fact, have a common interest. A defendant cannot simply pick and choose people he wants to talk to and thereafter claim that a conversation is privileged. And when Manafort entered into the cooperation agreement with the government, he ceased to have a common interest with other defendants, including the president, as a matter of law. As former U.S. attorney Chuck Rosenberg put it, having signed with the Yankees, he couldn’t give scouting reports to the Red Sox.

Thus, Mueller is fully entitled to subpoena Manafort counsel Kevin Downing and whichever Trump counsel spoke with him (one trusts it wasn’t Emmet Flood, who is too savvy for such shenanigans) and force them to reveal every word of the discussions.

Finally, the open pipeline between cooperator Manafort and suspect Trump may have been not only extraordinary but also criminal. On Manafort and Downing’s end, there is a circumstantial case for obstruction of justice. What purpose other than an attempt to “influence, obstruct, or impede” the investigation of the president can be discerned from Manafort’s service as a double agent? And on the Trump side, the communications emit a strong scent of illegal witness tampering (and possibly obstruction as well).

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