Manafort im­plodes with se­ri­ous im­pli­ca­tions

Hartford Courant (Sunday) - - Ctopinion - By Harry Lit­man

Fol­low­ing the im­plo­sion of Paul Manafort's co­op­er­a­tion agree­ment with spe­cial coun­sel Robert Mueller, a lawyer for Pres­i­dent Don­ald 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 in or­der 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 or not 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 do, 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.

But that's where po­lit­i­cal con­sid­er­a­tions pos­si­bly in­ter­cede. It is pos­si­ble that Trump's coun­selors bank on Mueller stay­ing his hand to avoid loud (if bo­gus) cries of foul play from Trump apol­o­gists, re­newed rants from Trump about a witch hunt, and even, pos­si­bly, a re­fusal from act­ing at­tor­ney gen­eral Matthew G. Whi­taker to per­mit the sub­poe­nas to go for­ward.

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).

Prov­ing those charges would re­quire a fight. The lawyers would be ex­pected to as­sert priv­i­lege, and cries of over­reach would sound from the White House and pro-Trump jour­nal­ists. Whi­taker could im­pede or coun­ter­mand the ef­fort.

But it's crit­i­cal to un­der­stand the stakes of the bat­tle. Even more than the pres­i­dent's po­ten­tial crim­i­nal li­a­bil­ity, there is a set of burn­ing ques­tions about ex­actly what hap­pened in 2016, the ex­tent to which Rus­sian ef­forts to in­flu­ence the pres­i­den­tial elec­tion found pur­chase in the United States, and what part was played by high-level Trump cam­paign of­fi­cials or the pres­i­dent him­self.

It is in­tol­er­a­ble to con­sider that the truth of th­ese con­se­quen­tial mat­ters would be smoth­ered and kept from the Amer­i­can peo­ple in­def­i­nitely. But that's ex­actly what the pres­i­dent's over­all strat­egy aims to do, and with the sup­port, at least tac­itly, of a com­plicit still-Repub­li­can-ma­jor­ity — for now — Con­gress. Is there no­body in the GOP with the guts to stand up to the pres­i­dent and the re­solve to see that the truth will out?

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