The dance between prosecutor and cooperating witness is fraught with opportunities for missteps. A productive relationship between a felon facing jail time and the inquisitor who seeks to put him there is somewhat implausible to begin with. It requires, at the very least, mutual respect. Prosecutors earn it by being forthright in their questions and remaining open to facts inconsistent with their theories. Cooperators earn it by telling the truth. It’s clear from special counsel Robert Mueller’s recent revocation of Paul Manafort’s cooperation agreement that Manafort had no interest in telling the truth, even about his business dealings in Ukraine. To the naïve, Manafort’s self-destructive behavior makes no sense.
But we now know that Manafort’s lawyers were in on the game. They double-crossed the special counsel by attending Manafort’s debriefing sessions for what appears to be the purpose of collecting information for Trump’s lawyers. They claim it was part of a continuing joint defense. But a joint defense agreement is a legal construct that allows lawyers representing clients in civil or criminal cases who share a common interest, to share information under the cone of privilege for the purpose of developing a legal strategy. The only legal strategy promoted by this specious Trump-Manafort joint defense was giving Trump and his team a tiny glimpse into the “witch hunt,” as Trump calls the special counsel’s inquiry.
At this point, it’s reasonable to conclude that Manafort’s plea agreement was a sham from the start. His lawyer’s illicit motives are so obvious, they might as well have planted a bug in Mueller’s conference room.
I served as a public corruption prosecutor in New York under then–U.S. Attorney Rudy Giuliani. Almost every successful case I brought, ranging from the prosecution of New York City Housing Authority janitors taking $50 kickbacks to congressmen soliciting million-dollar bribes, involved the testimony of cooperating witnesses.
The only lawyers I’ve seen, until now, who used their client’s cooperation to mislead prosecutors, as Trump’s and Manafort’s lawyers appear to have done, represented wise guys or narcos. Those lawyers never intended to do right by their clients because they’d been hired by the boss to defend the boss by making sure their underlings never told prosecutors the truth. As a former prosecutor who worked for and respected Rudy Giuliani, it’s unsettling to see him acting like a mob attorney representing a mob boss.
Had any of the defense lawyers we faced off against behaved this way, Giuliani would have insisted they be investigated for witness tampering and obstruction of justice. And he would’ve been right. Smart, ethical criminal defense lawyers just don’t act like this. Unless, as Trump’s recent comments suggest, Manafort and other possible cooperating witnesses, like Jerome Corsi, believe they are going to receive presidential pardons.
Former FBI agents and lawyers who worked with Mueller in the past have said that Mueller’s methodical pursuit of cooperating witnesses is how he approached the investigation of “Teflon Don” John Gotti. It is highly likely Mueller suspected Manafort’s plea agreement was a charade and an attempt to place a spy in the enemy camp from the very beginning. It is highly unlikely that during the barely two months of Manafort’s “cooperation,” the special counsel shared anything important with him. The investigators certainly didn’t disclose the contents of other witnesses’ testimony or provide him with critical documents or any other clues about their ultimate plans.
Commentators suggest that Russian investigation has been dealt a serious blow by Manafort’s defection. Hardly: The special counsel’s case stands exactly where it stood the day before Manafort pleaded guilty. It may be a little better because it only buttresses the obstruction of justice case he appears to be preparing against Trump. But Manafort is about to be sentenced to what looks like a life sentence, considering his age and relative health, and is awaiting possible indictment for additional crimes. If he’s been paying his lawyers, he should get his money back. They haven’t been representing his best interests for a while.
As shocking as Trump’s attempts to impede the investigation by dangling pardons to silence potential cooperators seems, wholesale presidential pardons appear to be the only cohesive legal strategy Trump’s lawyers have been able to come up with. They don’t seem to be able to find exculpatory evidence to fall back on. But based on what we’ve seen of the juggernaut Mueller has launched, including satellite investigations by the Justice Department and the U.S. Attorney’s office in the Southern District of New York, I doubt silencing recalcitrant cooperators will cause Mueller to even skip a beat. However and whenever the special counsel concludes his work, I predict he will make it clear that he had the last dance.