Manafort-Trump talks baffle legal community

Members of the legal community are at a loss for why former Trump campaign chairman Paul ManafortPaul John ManafortManafort might not fight claims he lied to Mueller The Hill's 12:30 Report — Trump, Dem leaders spar before cameras at meeting over border wall | Senate to vote on criminal justice bill | Google chief gets grilling Incoming CBC chairwoman says Dems could have no choice but to impeach Trump MORE decided to brief President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE’s attorneys on the discussions he’s had with special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE.

Former federal prosecutors and legal scholars say the move is not only rare but extremely risky for both parties and the attorneys involved.

While joint defense agreements are common and help co-defendants mount similar defense strategies, experts say that doesn’t apply in this situation since Manafort took a plea deal and agreed to work with federal prosecutors.

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Seth B. Waxman, a former prosecutor in the U.S. Attorney's Office for the District of Columbia, said there is no rule or law that says a person like Manafort can’t talk to other individuals about their cooperation with prosecutors, but it is illegal to obstruct justice and tamper with witnesses.

That means it all comes down to what was discussed.

“The devil is in the details,” Waxman said, noting that if lawyers knowingly and intentionally participated in any efforts to obstruct justice or tamper with a witness, they could be charged alongside Manafort.

At the very least, Mueller could force them to testify in front of a grand jury, according to Daniel Goldman, a former assistant U.S. attorney in the Southern District of New York.

“This whole notion of a joint defense agreement is total garbage because once Manafort pleads guilty, Manafort and Trump no longer have a common legal interest, which is required for a joint defense agreement to be valid,” he said.

Harry Litman, a former U.S. attorney, said he doesn’t understand why Manafort's and Trump’s attorneys have put their law licenses on the line. 

“I can’t conceive of what the lawyers in particular could be thinking,” he said. “They wouldn’t want to lose their licenses. They aren’t morons.”

Others have said that Manafort might be trying to remain in Trump’s good graces in hopes of securing a presidential pardon.

Trump said in an interview with the New York Post on Wednesday that he’s never discussed pardoning Manafort but that it’s “not off the table.”

“It was never discussed, but I wouldn’t take it off the table,” he said. “Why would I take it off the table?”

In a court filing Monday, the government accused Manafort of breaching his plea agreement “by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters.”

Laurence Tribe, a constitutional law professor at Harvard Law School, argued on Twitter that Trump just offering Manafort a pardon would be obstructing justice and tampering with a witnesses.

“Even defenders of an ‘absolute’ & ‘unbounded’ pardon power admit (as they must) that OFFERING a pardon IN EXCHANGE for a big favor to POTUS would be a federal crime (BRIBERY) and an impeachable offense,” he tweeted.

But the president’s ability to pardon an individual is not in dispute.

“Obviously, if the goal of these lawyers communicating with each other was to encourage or gain a pardon, that conduct would likely be unethical, maybe even illegal,” Joel Cohen, a former federal prosecutor turned criminal defense attorney, who practices at the New York-based law firm Stroock & Stroock & Lavan, said in an email to The Hill.

“But, as of yet, the reporting doesn’t show that,” he added.

The New York Times first reported the discussions between Manafort’s and Trump’s attorneys.

Cohen said it’s ethical for a lawyer for a cooperator to talk to the lawyer of a target or defendant, “as long as there is no intent to suborn perjury or seek some tangible benefit for having done so.”

“Of course, the particular facts will be determinative,” he said.

Manafort’s attorney Kevin Downing did not respond to a request for comment. Jason Maloni, a spokesman for Manafort, also did not respond to a request for comment.