Paul Manafort likely never truly intended to cooperate with the special counsel, but rather to undermine the investigation into the Trump campaign by passing along information about the probe to Donald Trump and his lawyers. That’s the best possible explanation for why someone convicted of multiple felonies would willingly plead guilty to more felonies in exchange for lighter sentencing through a cooperation agreement that he later breached to his own detriment.
As Trump confirmed with the New York Post Wednesday, a pardon for Manafort is still very much in the offing. (Keep in mind, that will do nothing to alleviate Manafort’s legal jeopardy at the state level.)
But the fact that Manafort’s and Trump’s lawyers may have shared what would normally be considered privileged information with each other under the guise of a joint defense agreement might well render their strategy nothing short of a devastating miscalculation.
Joint defense agreements in white collar crimes are common among defense lawyers. It allows them to share attorney-client privileged information with each other in order to determine what actually happened and what kind of case the prosecutor might piece together. But as former federal prosecutor and criminal defense attorney Ken White explains, the shield that a joint defense agreement provides disappears once one party to such an agreement starts cooperating with a prosecutor.
A joint defense agreement allows lawyers for people with a common interest in a case to share what they learned from clients without that information losing its confidential nature. Because everyone in the agreement has a common interest in defending the case and has agreed to keep the information secret, the theory goes, sharing the information within the group doesn’t waive its confidentiality. (emphasis added)
But once one party flips and starts cooperating, that common interest disappears and the confidentiality goes out the window right along with it.
If they revealed client confidences, they waived the attorney-client privilege. Mr. Mueller can, and perhaps should, try to find out what Mr. Trump’s and Mr. Manafort’s lawyers said to one another about their respective clients after Mr. Manafort began cooperating. The resulting legal battles over privilege would be spectacular.
And better yet, what if Trump memorialized lies that Manafort told them into his own written responses to Mueller.
That could expand the scope of Mr. Mueller’s investigation to include new false statements to the F.B.I., the downfall of several of his targets.
Manafort’s betrayal was a loss to the prosecution to some extent, but it’s also highly possible that Trump and Manafort’s lawyers overplayed their hand big time.