On Trump, Manafort and Joint Defense Agreements (9/14/18; 9/15/18)

Paul Manafort reached a plea agreement with the special counsel that requires his cooperation with the special counsel.  See e.g.,  Spencer S. Hsu , Devlin Barrett and Justin Jouvenal, Manafort will cooperate with Mueller as part of guilty plea, prosecutor says (WAPO 9/14/18), here.   I noticed just a couple of days ago that Trump's vocal counsel, one Rudy Giuliani, claimed that Trump and Manafort had a joint defense agreement ("JDA").  Colin Kalmbacher, Giuliani Confirms Trump and Manafort Have Joint Defense Agreement for Mueller Probe, Share Confidential Information (Law & Crime 9/13/18), here.

I had not heard that Trump and Manafort had a JDA before (or had not recalled that I had heard that), so I was intrigued as to why Trump's vocal counsel, one Rudy Giuliani, would be making a point of it now.

I will speculate that one reason might be to taint any information that Manafort may give pursuant to the cooperation agreement.  How would that happen?  The essence of a JDA is to assure that privileged information shared among members of the JDA will be privileged as to all members.  Hence, if the prosecution (the special counsel) obtains an indictment of another member of the JDA (here Trump), the prosecution would have to prove that the prosecution is not based directly or indirectly on privileged information Trump shared with Manafort under the JDA.  (See On Joint Defense Agreements (Federal Tax Crimes Blog 11/23/17), here, where I discuss these concepts.)

But the issue here may not be ability to prosecute Trump but ability to share relevant information with Congress as to whether Trump should be impeached and convicted.  The rules that might require exclusion in a criminal prosecution of Trump would not apply in an impeachment proceeding.  In that sense, the issue is not whether Trump should be convicted of a crime but whether his conduct is sufficient to justify impeachment by the House and conviction by the Senate.  Manafort's use of the information he received under the JDA could be used for that purpose.

Addendum 9/15/18 2:45 am:

The White Collar Crime Prof Blog, here, has a link to the superseding criminal information to which Manafort pled and indicates that there will be further discussion later.

Politico has a pretty good article on the deal behind the plea.  Josh Gerstein and Darren Samuelsohn, Manafort to cooperate with Mueller as part of plea deal (Politico 9/14/18), here.  Key points and excerpts:

1.  "The deal dismisses deadlocked charges against Manafort from an earlier bank- and tax-fraud trial in Virginia, but only after 'successful cooperation' with Mueller’s probe into Russian election interference and whether the Trump campaign coordinated with Moscow on its efforts."

2.  "[T]he agreement calls for a 10-year cap on how long Manafort will be sent to prison, and for Manafort to serve time concurrently from his earlier Virginia trial and the D.C. case involving foreign-lobbying and money-laundering charges, according to a second source close to the case."  The judge said that the sentencing guidelines indicated a sentence of 17 years but the plea to two five-year counts caps his sentence in the D.C. case to 10 years.  The judge cautioned, however, that the sentence and the sentence for the ED-VA convictions earlier might run consecutively to go beyond 10 years.  On a side note, I discuss how the plea to two counts with maximum sentence below the guideline range can limit the sentence in John A. Townsend, Analysis of the Fastow Plea Agreements,  2004 TNT 44-46 (3/5/04).  Related to sentencing:

* * * * a spokesman for Mueller said prosecutors agreed that Manafort was entitled to the maximum credit for acceptance of responsibility under federal sentencing guidelines. [JAT Note: This would be a three-level reduction for acceptance of responsibility.]  The deal also says prosecutors may ask that any sentence imposed on Manafort be reduced later if he is deemed to have given “substantial assistance” to Mueller’s probe.  JAT Note: This would be a 5K1 departure.]

3.  "[A] source close to the defense told POLITICO, 'the cooperation agreement does not involve the Trump campaign. ... There was no collusion with Russia.'" 

4.  His lawyer, Kevin Downing, is reported to have said:  "He’s accepted responsibility and this is for conduct that leads back many years, and everybody should remember that.”  Also, "Downing declined to say whether the arrangement would require that Manafort provide details about his interactions with Trump, or whether he would continue sharing information with Trump's lawyers under a joint defense arrangement."  (Emphasis supplied by JAT)

5.  Trump's spokespersons (Giuliani and Sanders) say that the plea has nothing to do with Trump, his campaign or election.