All the President's Joint Defense Agreements (10/8/18)

I have previously written on joint defense agreements ("JDAs") (in reverse chronological order):

• On Trump, Manafort and Joint Defense Agreements (Federal Tax Crimes Blog 9/14/18; 9/15/18), here.
• More on Joint Defense Agreements (Federal Tax Crimes Blog 5/15/18), here.
• On Joint Defense Agreements (Federal Tax Crimes Blog 11/23/17), here.

A very good discussion of JDAs in the special counsel's investigation appeared today, addressed to the general public:  Darren Samuelsohn, Trump team’s contact with Mueller targets could taint findings (Politico 10/8/18), here.  The author discusses the Trump legal team's use of JDAs and whether the use may have goals beyond those normally contemplated by JDAs.  I urge readers who are interested in the intersection of politics and the criminal law to read the article because I believe it is quite good.  (Full disclosure, I am quoted in the article.)

JAT Comments:

1.  In my experience, a participant in a JDA withdraws at least by the time the participant agrees to cooperate and tell all.  Of course, that participant will not be able to disclose items that the participant learned earlier from others in the JDA which are within the scope of the JDA.  And, if the participant disclosed information to the other participants that is confidential to himself within the scope of the JDA, the participant can still disclose that information to the prosecutors pursuant to the cooperation agreement.  The only prohibition on the cooperating participant is that he cannot disclose confidential information that the other participants in the JDA disclosed to him within the scope of the JDA.  So, to use the stark example discussed in the article, if Trump or Trump's lawyers disclosed to Manafort or Manfort's lawyers Trump's admission to a crime within the scope of the JDA, Manafort could not disclose that admission to the prosecutors and, if Manafort did disclose the admission in violation of the JDA, the prosecutors would not be able to use the admission, directly or indirectly, in criminally prosecuting Trump.  Other information that Manafort or his lawyers know that was not disclosed by Trump or his lawyers pursuant to the JDA can be disclosed to the prosecutor and can be used to prosecute Trump.

2.  The problem comes in separating what the witness, here Manafort, knows independent of the confidential information he received pursuant to the JDA.  If the prosecutor wants to prosecute Trump for a crime and uses information from a person in a JDA (here that would be Manafort), the prosecutor will have to prove that the prosecution is not based on any Trump confidential information that Manafort learned from Trump or his lawyers under the JDA.  Unless the parties in the criminal action can agree, that would require a Kastigar-like hearing where the prosecutor would have to prove that the case does not rely on that "tainted" information, directly or indirectly.  That can, in many cases, be an impossible burden and would require suppression of any possibly tainted evidence or even, if so intertwined with the prosecution, dismissal of the case.

3.  For this reason, JDAs can sometimes limit the benefit that prosecutors can get from cooperation from participants in a JDA and make prosecutors less willing to strike a deal with the participant if it appears that the evidence the participant has is tainted or potentially tainted.  This requires delicate negotiations in reaching a cooperation agreement (usually by plea).  Accordingly, in complex multi-target investigations, the marginal or less important actors may want to either not join a JDA or limit and carefully document what is received under the JDA so that that participant can maintain maximum flexibility in cooperation/plea negotiations.

4.  The key point I have made in the Trump context is that actual criminal prosecution of Trump may have to await the conclusion of his presidency, so that as to any of his misdeeds the more important issue at this stage is whether those misdeeds can or should be a subject of impeachment proceedings.  In that context, I do not believe that any otherwise confidential information a cooperating participant in a JDA learned would be subject to a privilege that would prevent the special prosecutor from putting the information in a report to Congress and Congress then using it to impeach.  Such a public use of the information might impair any future criminal prosecution of Trump, but it may be more important that he be impeached than that he be prosecuted.  Particularly, if he were to pardon himself or his successor were to pardon him.  (E.g., Richard Nixon, pardoned by President Ford upon Nixon's resignation.)

5.  The point of all this is that attorneys representing defendants in complex multi-party criminal investigations and prosecutions need to carefully consider whether to join a JDA in the first place and then carefully monitor what is disclosed to and learned from other participants in the JDA.

6.  Now as to Giuliani's claims that he has ongoing JDAs with persons who have agreed to cooperate with the special counsel, I am suspicious.  I can't imagine the witness not withdrawing so as to strengthen his negotiating stance in reaching the cooperation agreement and the special counsel not requiring withdrawal at least by the time the agreement is reached.  And, if indeed such continuing JDAs exist, my bet is that little, if any, potentially incriminating information is being shared with the cooperating witness.  And, if there is such continuing JDAs, I will bet that Trump's lawyers will try to urge that the continuing flow of information taints or further taints special counsel's use of the cooperating participant against Trump (whether in a criminal proceeding or otherwise).

7. I offer one scenario in which prosecutors might use information that, if tested in a Kastigar hearing might be suppressed.  Assume the Crime Boss ("Boss"), the ultimate target, and his Lieutenat (Littleguy), a target but not the major ultimate target, enter a JDA at the start of the criminal investigation.  In the JDA, Littleguy learns Boss' confidential information that is either directly incriminating against Boss or contains essential information when pieced together with what the prosecutor knows from independent sources would be incriminating to Boss.  Littleguy strikes a cooperation agreement, getting a plea to a minor felony or even a misdemeanor and full cooperation.  Littleguy then shares with the prosecutor the confidential information he learned from Boss in the JDA.  Now, assuming that the parties to the JDA really paid attention to the details of the JDA in a way that it protected the confidential information in question, the prosecutor cannot prosecute and obtain a conviction based on the confidential information.  But, the prosecutors can deploy it in a way that makes Boss think they have information that could pass a Kastigar hearing.  (Note I say could and not would; all that is required is that Boss think he may not prevail in a Kastigar hearing.)  The prosecutors then come to Boss with a deal that is sufficiently better than his total downside potential which might be avoided only by accepting the deal rather than going to trial and hoping, through a Kastigar hearing or otherwise, to get actually incriminating evidence excluded.  If Boss accepts the deal, whether or not the prosecutor could have successfully avoided exclusion or dismissal based on the JDA information is irrelevant.

8. There are all sorts of variations on this theme, such as having multiple actors and even differing JDAs among them.  The bottom line is that, even in a purely criminal investigation (set aside any noncriminal possibiblity such as impeachment), having a JDA might not offer the protection everyone thinks.

9. In my experience, participants in JDAs share very little directly incriminating information, unless by accident (such as where the defense attorney shares information that he or she does not recognize is incriminating to the client).  For example, looking at the Trump alleged JDAs with many potential subjects and targets of the special counsel's investigation, Trump's attorneys, if they were competent (at least during the period between Dowd and Flood) would not have shared incriminating information with the other players, who are bit players compared to Trump.  Trump's lawyers may have received potentially incriminating priviliged information from the other players, but they can't use that information to make a deal for Trump.  And, since Trump may not have shared any incriminating information with them (the prosecutor can show that his case is not based on any information they received), the JDA will offer Trump no protection.  But, Trump often uses such nothing-burgers to create smog and confusion.  I am sure he will in this case.