Yesterday, The New York Times revealed the bombshell news that a lawyer for former Trump campaign manager Paul Manafort was repeatedly disclosing to President Trump’s attorneys the contents of the conversations that his client was having with Robert Mueller’s team.
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The discussions with the Special Counsel were part of a cooperation agreement to reduce Manafort’s sentence after the former Trump campaign chairman was found guilty on eight felony counts in the first of the two scheduled trials that he faced.
The news was likely related to the big story from the previous day when Mueller declared Manafort’s plea deal null and void after accusing the convicted felon of violating the cooperation agreement by repeatedly lying to the investigators.
Today the implications of the backchannel discussions between Trump’s lawyers and the Manafort mole in the meetings with the Special Counsel’s office became much clearer, and they don’t look good for President Trump and his legal team, especially after presidential mouthpiece Rudy Giuliani admitted participating in the discussions to the Associated Press.
Legal analysts told NBC News that the conversations between the lawyers would not be covered by attorney-client privilege and that consequently Giuliani could be called before a grand jury to testify about the content of the discussions. Depending on what was discussed, lawyers on both teams could be subject to charges of obstruction of justice and, if a pardon was discussed, witness tampering.
“If you are trying to corruptly influence his testimony by dangling a pardon, that could be witness tampering,” Daniel Goldman, a former federal prosecutor and current NBC News and MSNBC legal analyst, said on Andrea Mitchell Reports.
Giuliani has claimed that the Trump and Manafort legal teams had a joint defense agreement under which they shared information. While this type of agreement is fairly common among defendants caught up in the same criminal investigation, legal experts say that a joint defense agreement can only be valid between people who have a common legal interest.
Once Manafort agreed to cooperate with Mueller, the analysts say he ceased to have a common interest with Trump who is still a subject of the investigation. Other former Trump associates who have been cooperating with Mueller to try to earn more lenient sentences have notified the president’s legal team that they were ending their joint defense agreements.
“Once Manafort signed up to cooperate with prosecutors, the ‘common interest’ he shared with Trump and others that let them shield their communications from prosecutors behind the attorney-client privilege evaporated,” said Joyce Vance, a former U.S. attorney and NBC News analyst.
“Any information that was shared after this point isn’t protected by their joint defense agreement,” Vance said. “If I were Mueller I would be issuing subpoenas today to Rudy Giuliani and Kevin Downing, and anyone else involved in those communications, so they would have to explain under oath exactly what was conveyed.”
While it’s still uncertain whether the sharing of information with Trump’s lawyers was the reason for Mueller’s suspension of the plea agreement since the Special Counsel hasn’t specified the details of the lies that he cites as the reason for the breaking of the agreement, we should find out by Friday when a Washington DC judge has scheduled a status conference.
“When Paul Manafort pleaded guilty, he signed a cooperation agreement with the government,” said former federal prosecutor Chuck Rosenberg, an NBC News analyst. “He switched from the Red Sox to the Yankees. It would be like playing for the Yankees, and now giving the Red Sox scouting reports. You can’t do that.”
Meanwhile, Vance described the extraordinary and troubling nature of the entire situation.
“The whole idea that we are talking about a president having a joint defense agreement with 32 other people — because they are all under criminal investigation — is not normal, and we can’t let it become normal,” she said.
The prospect of putting Rudy Giuliani in front of a grand jury under oath should be a major concern for President Trump at this point. We can only hope that Mueller decides to issue a subpoena as soon as possible.
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Original reporting by Ken Dilanian at NBC News.