Renatto Mariotto: By any standard, what Manafort & his attorney did was deceptive & highly improper

[Julian Englis]

Former federal prosecutor Renatto Mariotto explains why Manafort's leaking to tRump's lawyer was improper, illegal, and places Manafort, tRump, Manafort's lawyers, and tRump's lawyers in jeopardy.

Link to tweet

THREAD: What does today's news that Manafort's attorneys briefed Trump's attorneys about what he told Mueller after he agreed to cooperate tell us?

The entire thread is set out below;

THREAD: What does today's news that Manafort's attorneys briefed Trump's attorneys about what he told Mueller after he agreed to cooperate tell us?

1/ Today @nytimes reported that Manafort's lawyer repeatedly briefed Trump's lawyers about Manafort's discussions with Mueller *after* Manafort had already begun to cooperate. This arrangement is extremely unusual and highly questionable.

Manafort’s Lawyer Said to Brief Trump Attorneys on What He Told Mueller

The arrangement was highly unusual, and it appeared to give Mr. Trump and his advisers ammunition in their public campaign against the special counsel investigation.

2/ Before a defendant pleads guilty, his interests typically align with other people who are under investigation. In this investigation, before Manafort pleaded guilty, his interests were roughly aligned with Trump's because both of them are under investigation.

3/ Once Manafort pleaded guilty and agreed to cooperate with Mueller, his interests shifted. Typically cooperators / flippers are viewed as part of the prosecution team. They are trying to help the prosecution by providing information and potential testimony.

4/ It is common for attorneys representing subjects of an investigation to enter into what is called a "joint defense agreement." That is a way that lawyers for different people under investigation agree to exchange information and keep that information privileged.

5/ That agreement works because of something called the "common interest" doctrine, which says that when two people have a common interest in a legal matter, they can exchange information about that matter and keep it privileged.

6/ Those agreements are routine in complex white collar criminal cases, and I often enter into those agreements with other attorneys when I represent people under investigation. (And when I was a federal prosecutor, white collar defense attorneys usually had those agreements.)

7/ A common provision of those agreements, whether they're written or not, is that the person is required to notify everyone else that is part of the agreement if their client agrees to cooperate with the government, because that ends the common interest.

8/ Once someone flips, as Manafort did, his interests are against everyone else under investigation because the prosecutors will require him to cooperate against everyone else and tell them everything he knows. So communications from other subjects to him aren't privileged.

9/ In this case, after Manafort flipped, Mueller's team rightfully believed that their conversations with him wouldn't be shared with other people under investigation. Manafort's decision to do so was highly deceptive and undermined Mueller's investigation.

10/ By reporting to Trump what Mueller was asking about, Manafort was hurting Mueller, not helping him--even though he agreed to assist Mueller under the agreement. By any standard, what Manafort and his attorney did was deceptive and highly improper.

11/ Earlier today during our recording of the #OnTopic podcast, @JoyceWhiteVance said she would view communications with Trump's team as a breach of the agreement. (The episode will be out tomorrow--Wednesday.) I agree. But as I told her, I would go further if I was Mueller.

12/ Because Manafort had agreed to cooperate with Mueller, his attorney's communications with Trump's team were no longer privileged because they do not share a common interest. Mueller should seek to discover the communications between Manafort's attorney and Trump's attorneys.

13/ That would be very tricky to do, because those attorneys would resist, and putting them in this situation could disqualify them from representing their clients because they may have disclosed client confidences, which means their clients might have a claim against them.

14/ The mere threat of taking this action would usually dissuade any lawyer from continuing to engage in this activity. But it's already happened. So what can be done now? While the attorneys did something highly unusual and likely unethical, it's generally not a crime.

15/ On its own, this could just be considered highly questionable judgment. But if this is part of a pattern of activity, you could imagine this being part of a larger obstruction of justice case being made by Mueller. It is another active attempt to undermine his investigation.

16/ I have participated in many investigations, both when I was a federal prosecutor and now as a defense attorney, and I've never heard of something like this happening. If true, Trump's attorneys are willing to take huge risks because they think they can get away with it.

17/ Some of you are asking, in responses to this thread, how they can get away with doing this. For one thing, it's very possible that none of them wrote down the conversations they had with each other, and all of them would resist efforts to discover what they told each other.

18/ If Mueller pursued them, it would be hard to prove beyond a reasonable doubt exactly what they said. Trump and his allies could bring political pressure and call Mueller's tactics aggressive, which they would be--they would be a response to highly aggressive tactics.

19/ Trump could always pardon his attorneys, although that could come at a political cost. So what comes of this? Mueller's team could detail all of this to the judge who will sentence Manafort. She is obligated to consider the "history and characteristics" of Manafort.

20/ She is also obligated to consider the "nature and circumstances" of his offense. Mueller could also try to find out what the attorneys told each other--merely trying to do that would have consequences. He could also include this activity as part of this obstruction case.

21/ Given DOJ guidance that a sitting president can't be indicted, any conclusion that Trump obstructed justice would likely not take the form of an indictment. But the efforts to obstruct the investigation via Manafort could be part of Mueller's conclusion on the topic. /end

[Roland99]

1. It's always the cover up

[libdem4life]

2. Pushing the envelope, as they say.

At what point does Teflon Don get scratched off the pan. Asking for a friend who cooks.

[AJT]

3. Considering what people are expecting from the Mueller investigation

if all it ends up being is obstruction and not 45 being linked directly to Russian interference and from there financial crimes that would be a terrible let down. After all this time there needs to be more.