Author Topic: The federal indictment/fake news MEGATHREAD  (Read 51211 times)

The Minsky Moment

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1170 on: November 28, 2018, 08:32:32 am »
Some info on Joint Defense Agreements and Manafort

+ Some of the media reports have talked about JDA as something that is done by defendants in mob cases.  That is misleading, JDAs are commonplace in any multi-defendant case, including civil cases. They can also be entered into by co-plaintiffs.

+ a JDA is just a variation on the attorney client privilege, but allowing multiple lawyers and clients to share information without breaking privilege. ("Common interest privilege") The rules on privilege are governed by state law, there isn't perfect national uniformity.  For this purpose DC is treated as its own state.

+ A settlement or cooperation agreement typically destroys the viability of the common interest privilege as to the settling or cooperating party - because there are now conflicting interests.  Written JDAs commonly contain specific provisions for how to handle such exits.

+ Parties can keep talking even after cooperation but the risk is those discussions are no longer covered by privilege.

+The higher echelon of the defense bar is a something of a village, even in a big city like NYC everyone knows of most everyone else. Courtesy and friendly talk between attorneys happens and there isn't always a perfectly airtight seal between a cooperator's lawyer and lawyers for other subjects.

+That said the level of discussion between Manafort's lawyer and the Trump team seems very unusual and extremely risky.  It also raises the prospect that the prosecutors could conclude that the entire cooperation was a sham from the start, a ploy to extract info.

+ This may be obvious, but the whole point of a cooperation agreement is so that the govt will tell the judge what a good boy you've been at sentencing.  Pissing off the prosecutor is not good tactics in that situation.
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The Minsky Moment

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1171 on: November 28, 2018, 08:41:00 am »
If a judge rules that Manafort lied, and Mueller can prove that Manafort coordinated with Trump to make sure their stories matched, and gave those lies to Mueller in the written answers he sent in last week, then mission accomplished.

Not really because the true mission was probably to get Manafort to testify about how he used his longstanding connections to Russian spooks to benefit the campaign + identify others who knew or participated in this.  Now they won't get that, at least not directly.
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Syt

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1172 on: November 28, 2018, 11:51:18 am »
Quote
Donald J. Trump Retweeted
The Trump Train  🚂 🇺🇸
@The_Trump_Train
 10h10 hours ago




 :huh:
Here in these streets are the things that we want: sex and birth, votes and traits, money and guilt, television and teddy bears. But all we've actually got is each other. You decide what that means.

The Brain

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1173 on: November 28, 2018, 11:57:26 am »
:lol:
You are gay.

Valmy

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1174 on: November 28, 2018, 12:31:42 pm »
Quote
Donald J. Trump Retweeted
The Trump Train  🚂 🇺🇸
@The_Trump_Train
 10h10 hours ago




 :huh:

Ah yes. The President calling for his political opponents to be jailed. Of course the meme is a nonsensical lie...but of course it is.
« Last Edit: November 28, 2018, 12:34:11 pm by Valmy »
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Barrister

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1175 on: November 28, 2018, 01:49:48 pm »
Ah yes. The President calling for his political opponents to be jailed. Of course the meme is a nonsensical lie...but of course it is.

One of the faces behind bars is Rod Rosenstein.  A man who was nominated by Trump, and who works for Trump.

If he considers Rosenstein a traitor why does he continue to sign his paycheques?

Razgovory

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1176 on: November 28, 2018, 02:17:48 pm »
I've given it serious thought. I must scorn the ways of my family, and seek a Japanese woman to yield me my progeny. He shall live in the lands of the east, and be well tutored in his sacred trust to weave the best traditions of Japan and the Sacred South together, until such time as he (or, indeed his house, which will periodically require infusion of both Southern and Japanese bloodlines of note) can deliver to the South it's independence, either in this world or in space.  -Lettow April of 2011

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viper37

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1178 on: November 28, 2018, 02:33:59 pm »
Quote
Donald J. Trump Retweeted
The Trump Train  🚂 🇺🇸
@The_Trump_Train
 10h10 hours ago




 :huh:
didn't he fire him?
edit: ah, no, not yet.  it's hard to keep up to date with these staff movements.
« Last Edit: November 28, 2018, 02:38:03 pm by viper37 »
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viper37

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1179 on: November 28, 2018, 02:36:53 pm »
paycheques?


 :lol:

:unsure:
americans are modern folks.  They don't use credit cards with PIN#, they don't use bank cards, they use cheques, but they don't have paycheques, only direct deposit ;)
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Syt

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1180 on: November 28, 2018, 02:54:08 pm »
I believe they have checks, actually. :P
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The Brain

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1181 on: November 28, 2018, 03:01:29 pm »
No balances. :(
You are gay.

HVC

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1182 on: November 28, 2018, 04:12:03 pm »
Being lazy is bad; unless you still get what you want, then it's called "patience".
Hubris must be punished. Severely.

Eddie Teach

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1183 on: November 28, 2018, 04:28:39 pm »
Is it just me, or does the guy between Clinton and Holder look like Jonathan Banks?  :huh:
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jimmy olsen

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Re: The federal indictment/fake news MEGATHREAD
« Reply #1184 on: November 28, 2018, 04:31:38 pm »
Popehat has an oped on this in the Times

https://www.nytimes.com/2018/11/28/opinion/manafort-pardon-trump-mueller-pardon-.html

Quote

Why Did Manafort Cooperate With Trump Over Mueller?

Lawyers for Manafort and Trump engaged in a brazen violation of criminal defense norms. The move could pay off, or it could blow up spectacularly.

By Ken White
Mr. White, a criminal defense lawyer, is a former federal prosecutor.

Nov. 28, 2018

Kevin Downing, a lawyer for Paul Manafort, has reportedly been relaying details of Mr. Manafort's conversations with federal prosecutors to the Trump legal team.

Two significant developments seem to have kicked Robert Muellerís investigation into a new gear: First, prosecutors say, the former Trump campaign chairman and convicted felon Paul Manafort violated his cooperation agreement with them, and second, Mr. Manafortís lawyers are said to have been leaking the details of that cooperation to President Trumpís legal team.

On Monday, Mr. Mueller filed an incendiary status report accusing Mr. Manafort of breaching their cooperation agreement, lying to the F.B.I. and committing further federal crimes after his September guilty plea to fraud and other charges. Mr. Muellerís team, which held off Mr. Manafortís sentencing while he supposedly cooperated ó and, it should be noted, while Mr. Trump completed his written responses to questions from Mr. Muellerís team of prosecutors ó has now asked the federal judges hearing his cases in Washington and Virginia to sentence him promptly on what are certain to be very harsh terms. Mr. Mueller will be documenting his accusations lavishly and publicly in his sentencing position papers.

On Tuesday, The Times reported that Mr. Manafortís lawyers have been telling Mr. Trumpís lawyers what the special counsel asked Mr. Manafort and what the latter said in response.

The first development isnít much of a surprise. Wise prosecutors know that cooperating witnesses can be notoriously unreliable. Itís not unusual for prosecutors to catch cooperators in lies or recidivism.

But the second development ó that Mr. Manafortís lawyers have been spilling the details of their clientís cooperation to Trump lawyers under the cover of an often-used but little-understood pact called a joint defense agreement ó is shocking. The revelation is a potential catastrophe for everyone involved.

Itís a blow to Mr. Muellerís team, because their questions to Mr. Manafort ó repeated to Mr. Trumpís lawyers ó may be a road map to at least part of the special counsel investigation. Mr. Trumpís lawyers can now adjust their defense, and the presidentís responses, based on what theyíve learned about Mr. Muellerís focus and what he knows or doesnít know. And with their filing on Monday asserting Mr. Manafortís dishonesty, the prosecutors lost him as a cooperating witness and can no longer pursue any theory relying on his testimony.

Itís a blow to Mr. Manafort, who will receive no sentencing credit for his brief cooperation. Itís a blow to Mr. Manafortís lawyers; no federal prosecutor will ever trust them again. And itís a blow to Mr. Trump, who has overplayed his hand, because Mr. Mueller may now be able to delve into the Trump lawyersí conversations with Mr. Manafortís lawyers.

Federal prosecutors say Mr. Manafort repeatedly lied to them and have asked a judge to set a sentencing date.
Mr. Manafort, like many of the hapless former luminaries snared in Mr. Muellerís investigation, had a joint defense agreement with Mr. Trump. Such a pact lets defense lawyers exchange information without waiving attorney-client privilege.

Under normal circumstances, if a lawyer reveals what a client said in confidence, or reveals strategy and analysis of a case, that information is no longer confidential, and the government can compel testimony about it. 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 doesnít waive its confidentiality.

Joint defense agreements are common in white-collar investigations because they allow lawyers to figure out two crucial things: what happened and what the prosecutor knows about it. Mr. Trumpís lawyers have made vigorous use of such pacts ó weíve learned he has them with Mr. Manafort and with the Roger Stone confidant Jerome Corsi.

But the pacts almost always explicitly require the parties to withdraw from the agreement immediately if they cooperate with the government. After all, once someone begins to cooperate, his interests are no longer common with the other members of the joint defense agreement ó by definition, theyíre now adverse. This is often how we learn that someone will soon plead guilty: The former national security adviser Michael Flynn had a defense pact with the president, but his withdrawal from it signaled his cooperation and plea.

The objectives of a cooperation agreement like the one Mr. Manafort entered with Mr. Mueller are flatly inconsistent with the obligations of a joint defense agreement. So it doesnít matter whether or not Mr. Manafort explicitly withdrew from his deal with Mr. Trump, because once he began cooperating ó or, at least, pretending do ó the legal theory supporting the agreement collapsed. Because Mr. Manafort no longer had, on paper, a ďcommon interestĒ with Mr. Trump, his lawyersí communications with Mr. Trumpís lawyers could no longer be seen as cloaked with any expectation of confidentiality.

If they revealed client confidences, they waived the attorney-client privilege. Mr. Mueller can, and perhaps should, try to find out what Mr. Trumpís and Mr. Manafortís lawyers said to one another about their respective clients after Mr. Manafort began cooperating. The resulting legal battles over privilege would be spectacular.

Some analysts speculate that Mr. Mueller intended this result ó that he knew that Mr. Manafort would lie to him, knew that Mr. Manafortís lawyers would brief Mr. Trump on those lies, and knew that Mr. Trump would foolishly repeat those lies in his written statement to Mr. Mueller, thus committing a new federal crime.

Thatís a good plot for a legal thriller, but itís not how real federal prosecutors work. Mr. Mueller is a by-the-book sort of prosecutor, not one to indulge in such ploys. To the extent he trusted Mr. Manafort and revealed details of his investigation, he made a mistake. Of course, the presidentís team ó never a font of shrewd criminal defense strategy ó may have made a mistake, too, if they incorporated Mr. Manafortís lies into their own written responses to Mr. Muellerís questions. That could expand the scope of Mr. Muellerís investigation to include new false statements to the F.B.I., the downfall of several of his targets.

Mr. Muellerís mistake is understandable. Mr. Manafortís lawyersí communications with Mr. Trumpís lawyers are shocking and unprecedented, a brazen violation of criminal defense norms notable even in an investigation full of them. They are consistent with only one conclusion: Mr. Manafort and his lawyers seek a presidential pardon, not a reduced sentence through sincere cooperation.

Ken White, a former federal prosecutor, is a criminal defense lawyer and First Amendment litigator at Brown White & Osborn in Los Angeles, and a host of ďAll the Presidentís Lawyers,Ē on radio station KCRW
« Last Edit: November 28, 2018, 04:35:04 pm by jimmy olsen »
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