Of Joint Defense Agreements

joint defense agreement

There has been much talk lately about joint defense agreements, and specifically about the Trump/Manafort agreement. (I remember a talking head saying that there are actually 32 people involved.) See, for example, this explanation in the New York Times.

Unlike some of you, I have been party to many joint defense agreements, mostly in connection with civil proceedings but sometimes in connection with criminal defense of multiple targets. To bring the discussion down to earth, you may find the following word picture helpful and interesting.

A Real, Live Joint Defense Agreement

There have been scurrilous and wholly unjustified accusations of price-fixing in the widget industry. The lawyers for the various investigative targets enter into a multi-page joint defense agreement. After the grand jury begins to hear witnesses, a meeting takes place in a large conference room.

Seated around the conference table are a couple of outside counsel for each of the target companies. The chair convenes the meeting, reminds those assembled that the discussion about to take place is governed by the terms of the written agreement and that they must strictly observe it, and all the counsel nod their heads and say yes.

The chair then calls the first speaker, who identifies himself as Arius Aardvark, Esq., of Dewey Cheatum & Howe, counsel for the Alpha Widget Company. Arius continues by stating that on July 27 Mr. Adam Alpha, Alpha Company’s vice president for marketing, testified for about four hours before the grand jury. As per usual, Arius was not permitted in the grand jury room, but sat right outside. When Mr. Alpha was done testifying, Arius and an associate immediately took Mr. Alpha aside, and debriefed him extensively on what questions he was asked and what answers he gave the prosecutor.

Arius and his associate took detailed notes of the debriefing, but these notes are presented in a highly edited way. Reading from a carefully prepared text, Arius speaks for about twenty minutes, summarizing, or purporting to summarize, the gist of the testimony. Probably, this summary will contain no outright lies, but Arius may or may not be  economical with the truth, depending on what his client’s tactical interests may be and what they want their fellow investigative targets to know.

After Arius finishes his talk, there are might be a few followup questions from counsel for other companies about exactly what was asked and what was answered. There is, however, no discussion about, for example, whether Mr. Alpha testified truthfully or falsely, about how his answers might have been improved, and so on. That’s because the outside counsel don’t want to be charged with conspiring to suborn perjury. .

After Arius speaks, the chair calls on outside counsel for Beta Enterprises, and more of the same ensues.

What if Alpha is Guilty as Sin?

I’d also note that if Arius thinks his client can likely be proved guilty beyond a reasonable doubt, he is going to encourage Mr. Alpha, and the corporation for which he works, to cooperate with the investigation in exchange for leniency.

At that point, Arius will give formal notice of withdrawal from the joint defense agreement, in accordance with its terms.

Context

I hope this is helpful in providing some context for what looks so fishy about the continued cooperation between Trump and Manafort, while Manafort was cooperating with the government, or pretending to do so.

My own suspicion? As some others have suggested, my guess would be that Mueller found out, one way or another, that Manafort’s and Trump’s lawyers were continuing to have improper conversations, and used his interactions with Manafort to provide information to the Trump team that would misdirect them about how much Mueller really knew, and about what directions he was pursuing.

Remember that Title 18, Section 1001, makes it illegal for you to lie to the government, but not for the government to lie to you.

“Such Respect for a Brave Man!” but Ixnay on the Ardonpay

Manafort Guilty

Matt Ford, Robert Mueller is Winning:

On Friday, Manafort finally cracked from the pressure. President Donald Trump’s former campaign chairman pleaded guilty to conspiracy against the United States and conspiracy to obstruct justice in a D.C. courthouse. He also admitted his guilt to ten charges on which the Alexandria jurors failed to reach a verdict. And in exchange for a lighter sentence to be determined later, Manafort gave Mueller his prize after eleven months of labor: a binding agreement to “cooperate fully, truthfully, completely and forthrightly … in any and all matters as to which the government deems the cooperation to be relevant.” …

What distinguishes Trumpworld from an organized-crime syndicate or a money-laundering bank, of course, is the presidency itself. Trump could use its powers to shut down the Russia investigation, fire Mueller and other top Justice Department personnel, and pardon his cronies with relative ease. That threat is now somewhat mitigated. Mueller’s team told the court during Friday’s allocution that Manafort had already begun providing them with information, which limits the practical impact of pardoning him now. …

It’s theoretically possible, of course, that Trump played no part in any possible collusion, and that Manafort doesn’t know anything that could implicate him. The president, like all potential defendants, is legally innocent until he’s proven guilty.

Trump and his allies, however, aren’t acting like innocents. …

After the twin blows last month of Manafort’s conviction in Virginia and Michael Cohen’s guilty plea in New York, the president praised his former campaign chief for not bending the knee to prosecutors. “I feel very badly for Paul Manafort and his wonderful family,” Trump wrote on Twitter. “[The Justice Department] took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’—make up stories in order to get a ‘deal.’ Such respect for a brave man!”

Shortly thereafter, Trump reportedly told a Fox News reporter off camera that he was considering a pardon for Manafort. He then suggested in the interview that “flipping,” a common prosecutorial tactic, “should be illegal.” Rudy Giuliani, the president’s personal attorney, quickly briefed reporters that Trump and his legal team agreed that there would be no pardons until after Mueller’s investigation had ended. The implicit message seemed to be clear: As long as Manafort stays quiet, the president will spare him from prison when this all blows over.

That option now seems moot.

flipping