The press is heavily invested in making this into a bad thing for Mueller.
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If they are, itâs nonsense.
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Yeah, you had, I didnt remember them to be on the exact point and did not read them. Will read them over the course of today, thanks very much.
I have never researched it, as I think I said in the same thread. I worked for a pretty aggressive and prominent federal defense attorney, is where I learned all my criminal law. He was drummed out of the elite ranks of OC defense for being willing and enthusiastic about cooperating his clients in OC cases while Legal Omerta was the code for lawyers in that circle. Everything I believe about this issue comes from observing him run away, ignore and blow off any co-defendant attorney calls for Joint Defense meetings and discussions once he was pursuing cooperation. And he was pretty brazen, but not brazen as Giuliani and Manafortâs dumb fuck weight lifting former tax prosecutor.
thanks, will read over the course of the day.
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I think this might be the most salient point. Whitaker is basically a nothing. Heâs so ethically compromised that he canât really do much to stop what is already in process.
This has been an on-going obstruction of justice by Trump for months and it has been through leveraging these joint defense arrangements that Trump is gaining knowledge about the Special Counselâs investigation. This is actually far less damaging than what Nixon did. He had someone on the inside feeding him info weekly. Here, the Special Counsel controls what info Trump is seeing by controlling what he communicates to the other defendants/witnesses. The Special Counsel appears to be on to Trumpâs scheme and may have just exposed it in a very public way.
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Yesterday someone pointed out that part of that agreement was guilty pleas to some state charges. Manafort canât get pardons for those.
@katscherger - I have never dealt with a situation where someone had that kind of agreement. I have only ever dealt with situations in which one lawyer represented more than one person involved in the same crime and it was a conflict of interest. The lawyer got disbarred ultimately but not for that - he commingled a bunch of funds in another case. But I was never in a situation with multiple defendants.
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This is confusing. I donât see how it could be a literal guilty plea to a state charge in a federal court. I would assume it was an admission, under oath, to violating certain state laws that could later be used in a subsequent prosecution by the state(s).
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I am not a lawyer bt this seems a leeeettle unethical to me. Can a lawyer fill me in? This canât be normalâŚ
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Perfect finale to the Mueller v. Trump chess match.
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Me too, but Iâd settle for a fatal AMI, and Iâd send Burger King a thank-you note.
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Iâd settle for his running away to Russia and staying there.
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One detail that bothers me, why didnât Manafortâs plea agreement prohibit (further) participation in a JDA? Is it so outlandish that a cooperating defendant would do that, that such a prohibition hasnât made into plea agreement boilerplate? If so, can we expect to see it in future plea deals?
Iâll note that the plea agreement prohibited Manafort from appealing his DC and EDVA convictions/pleas.
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Maybe arguably persisted. 
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@occamscoin. All the former Fed prosecutors on the teevee say thatâs pretty much it. Itâs so outrageous it isnât even addressed in the forms, and they all assume the cooperation agreement means any prior JDA is void due to lack of common interest. But now every prosecutor in the country is amending their form plea agreements.
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It should.
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Apparently, itâs so far outside the boundaries of what is usually done that it didnât occur to anyone that Manafort would be so heavily invested in being a career criminal after being convicted.
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You might want to take a look at Larry Tribeâs take. Yes, itâs not per se illegal and not improper as a matter of law. But under these circumstances, there is almost no possible way that continuing to communicate with a subject of an investigation who has the power to pardon you under pretext of a JDA after youâve entered into a cooperation agreement isnât going to lead to conduct that constitutes obstruction of justice and witness tampering and conspiracy. No. Fucking. Possible. Way.
Further, once you enter into a cooperation agreement, the common interest necessary to uphold a JDA breaks, meaning no privilege attaches to any communication. If youâre a lawyer and youâre engaging in such communications, youâve made yourself a witness and potentially exposed client confidences unless you are almost impossibly careful, which is improper without client consent and may not even be a thing a client can consent to.
And, still further, if you represent someone who enters into a cooperation agreement and never terminates and continues sharing information with another potential defendant, particularly one with pardon power, you have helped your client enter into an contract induced by a misrepresentation or omission of material fact. We lawyers have a very special word for that, as you know.
So, if as a lawyer for Manafort, you helped perpetrate fraud, which you are continuing to perpetuate by communicating with Rudy under pretext of a JDA. If youâre still pardon fishing, you well on your way to being charged as party to a conspiracy to tamper with witnesses and/or obstruct justice. And, congratulations, as a participant in an ongoing crime-fraud exception, youâve also created probable cause for a wiretap warrant on your phones and overcome any queasiness a magistrate judge might feel about issuing the warrant by establishing that the targeted communications arenât privileged (obviously, the warrant application agree to and specify use of a clean-room procedure).
Oh, wait, I forgot. Youâve also breached your duty of candor to the tribunal and fairness to opposing counsel, which also puts your law license at risk.
The way the people in the media are latching on to entirely theoretical assertions that it isnât per se illegal or unethical and giving them are too much weight are misinforming the public ala the notorious Oct. 31, 2016 FBI sees no clear link to Russia NYT story. Avoiding criminal and unethical conduct under these circumstances is a âcamel through the eye of a needleâ possibility.
ETA: Oh, and hereâs another nest of ethical problems. If you get a CYA letter agreement from the client authorizing you to communicate with Rudy/Trump under a JDA even though the communications may breach your attorney client privilege, your CYA letter is evidence of intent to defraud the office of special counsel re its entry into a cooperation agreement with you. It is evidence establishing you never intended to cease having a common interest with the other defendants at the time you entered into the cooperation agreement. I do not think it is ethical for an attorney to enter into a CYA agreement that benefits the lawyer by compromising the clientâs penal interest. And that letter is not going to be privilegedâand even if it is, you have to use the limited right of an attorney to waive privilege to defend himself, which you also canât do without compromising the clientâs penal interest.
ETA: Uh-oh, and hereâs another little problem implicit in the foregoing which, to my mind, reduces the theoretical possibility this is legal and ethical to zero. The common interest necessary to maintain a JDA is completely inconsistent with non-fraudulent entry into a cooperation agreement. If you agree to cooperate, you have no common interest with the other defendant unless your agreement to cooperate is fraudulent. So if you maintain you have a valid JDA, youâre necessarily admitting that either you never had any intention to fully perform under the cooperation agreement (which is fraud) or you did have such intention but later decided to breach it (which would be a material breach that subjects you to the worst case scenario from a sentencing standpoint and likey even refiling of uncharged or dismissed offenses).
And even if you stipulate that the communications with other defendants were not privileged, maybe you avoid fraud, but youâre still in breach and thus hosed. Unless youâre pardon fishing, in which case youâre open to charges of witness tampering and obstruction conspiracy.
When Jesus said it is easier to put a camel through the eye of a needle than for a rich man to get into heaven, he wasnât holding out a tiny bit of hope to the richâhe was saying itâs impossible. And thatâs the kind of chance of legality and ethical probity we have here.
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Thank you - I certainly agree that this makes a lot more sense than just - nothing wrong with this!
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Thatâs really all Iâve said about it.
And yes, there is plenty more that can be said about it â perhaps when more facts have been made public.
(I agree and disagree with various parts of what you go on to write â but so what?)
Right, and my question is whether this is grounds for professional discipline or disbarment for the attorney. IAAL, but donât know the answer to this.
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With his wife and evil spawn.
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There could have been a protective order that barred disclosure, though.
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