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April 23, 2019

President Trump’s joint defense agreement with Paul Manafort could amount to obstruction, experts say

November 28, 2018
Legal experts say a joint defense agreement between Paul Manafort and President Trump could be legally dubious. (Mark Reinstein / Mark Reinstein/MediaPunch/IPx)

President Trump’s legal team has acknowledged he maintained a joint defense agreement with Paul Manfort even though the embattled ex-campaign chief entered a cooperation deal with special counsel Robert Mueller — and experts say that highly unusual contract could be criminal.

Rudy Giuliani, Trump’s top lawyer in the special counsel probe, confirmed Wednesday that the President has been briefed on several occasions by Manafort’s lawyers about his cooperation with Mueller’s investigators as part of the plea deal he entered in September.

“They share with me the things that pertain to our part of the case,” Giuliani told the Associated Press.

The former New York mayor did not return repeated requests for further comment.

Former federal prosecutors say the communications between Manafort’s lawyers and Trump’s legal team could amount to obstruction of justice if Manafort’s side disclosed confidential information he had learned from his interviews with the special counsel.

Separately, legal experts said Trump’s legal team may have committed witness tampering if they discussed a possible presidential pardon for Manafort in exchange for his feeding information. Giuliani has continuously said the President hasn’t ruled out pardoning his former campaign head.

The possible illegality of the exchanges comes down to whether there was a dubious intent.

“If the whole purpose was to undermine the Mueller investigation and that was proven in some way, then that would be a violation of law,” Renato Mariotti, a former federal prosecutor in Illinois, told the Daily News.

Such intent is hard to prove, Mariotti said, particularly since both sides would likely be hard pressed to testify against the other.

But experts agreed it’s legally possible for Mueller to subpoena Giuliani or Manafort attorney Kevin Downing to dig into what was discussed.

A spokesman for the special counsel declined to comment.

Beyond possible illegality, the defense agreement is ethically dubious and likely not valid, according to Mimi Rocah, a former federal prosecutor for the Southern District of New York.

“I saw this conduct in Mafia cases,” Rocah tweeted. “At a minimum, it’s unethical and not normal.”

Joint defense agreements can only exist between people who have common legal interests and are subjects of the same criminal investigation.

Therefore, experts said the agreement between Trump’s team and Manafort’s team ceased to be valid once Manafort agreed to cooperate with the special counsel’s office, as his legal interest were by then no longer aligned with Trump, who is a subject of Mueller’s investigation. The attorney-client privilege protections that were ensured by the agreement would thereby also have been annulled and Mueller could now try to demand testimony about the discussions.

“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,” Mariotti said. “By any standard, what Manafort and his attorney did was deceptive and highly improper.”

On a separate note, Mueller charged in a court filing earlier this week that Manafort has violated his plea agreement by lying to investigators. Mueller didn’t divulge the nature of those alleged lies but pledged to file additional documents to spell them out ahead of his sentencing.

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