Legal Ethics

Trump's lawyers were briefed on Manafort's discussions with feds; are the conversations privileged?

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Paul Manafort/Mark Reinstein (

A lawyer for Paul Manafort continued to brief President Donald Trump’s lawyers about his discussions with federal investigators even after Manafort agreed to cooperate.

Trump lawyer Rudy Giuliani acknowledged and defended the continuing arrangement in an interview with the New York Times. According to the Times, “The arrangement was highly unusual and inflamed tensions with the special counsel’s office when prosecutors discovered it.” The newspaper relied on two unnamed sources for information on the deteriorating relationship.

Giuliani said the cooperation provided valuable insights, and he cited one example: Manafort’s lawyer, Kevin Downing, told him that prosecutors wanted to know whether Trump was aware of his son’s plan to meet with a Russian lawyer who promised dirt on Hillary Clinton. Mueller “wants Manafort to incriminate Trump,” Giuliani told the Times.

Prosecutors in the special counsel’s office alleged on Monday that Manafort lied to the FBI and the special counsel’s office after he pleaded guilty in September to reduced charges of conspiracy. Manafort is President Donald Trump’s former campaign chairman, and the guilty plea related to his work for the former government of Ukraine.

The shared information is part of a joint defense agreement. Such agreements are not unusual in investigations with multiple witnesses. But typically any defendant who agrees to cooperate in a plea deal ends the agreement, the Times explains.

Manafort may have continued to share information in hopes of obtaining a presidential pardon, according to University of Michigan law professor Barbara McQuade, a former U.S. attorney who spoke with the Times.

Trump told the New York Post on Wednesday that he hasn’t ruled out a pardon for Manafort. “It was never discussed, but I wouldn’t take it off the table. Why would I take it off the table?” he said.

McQuade and other experts also have suggested that the information-sharing could amount to witness tampering or obstruction, if there is an aim to influence testimony, report the Washington Post and NBC News. The stories point out another ramification: Special counsel Robert Mueller may be able to learn about the conversations between legal teams because they are no longer covered by attorney-client privilege.

NBC News explains: “A joint defense agreement can only exist between people who have a common legal interest. Once Manafort began cooperating with Mueller, he ceased to have a common interest with Trump, a subject of the investigation. … Once people involved in litigation no longer have a common interest—even if they say they do, courts have ruled—the conversations are not protected.”

New York University law professor Stephen Gillers told the Washington Post he thought Mueller could defeat any claim for privilege if he seeks to learn about the conversations between lawyers for Trump and Manafort. A privilege claim would arise in the context of a grand jury subpoena.

NBC News analyst Joyce Vance, a former U.S. attorney, said she would seek the communications if she was in Mueller’s place. “If I were Mueller, I would be issuing subpoenas today to Rudy Giuliani and Kevin Downing, and anyone else involved in those communications, so they would have to explain under oath exactly what was conveyed.”

Giuliani said last month that Trump’s lawyers have joint defense agreements with 32 witnesses or subjects of Mueller’s investigation. One of the people with such as agreement is conservative author Jerome Corsi, the Daily Beast reports. On Monday, Corsi refused a deal offered by the special counsel’s office to plead guilty to perjury for allegedly lying about his conversations with Trump adviser Roger Stone about WikiLeaks.

Vance expressed concern about the extent of information-sharing, according to the NBC News story. “The whole idea that we are talking about a president having a joint defense agreement with 32 other people—because they are all under criminal investigation—is not normal, and we can’t let it become normal,” she said.

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