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Trump team’s contact with Mueller targets could taint findings

President Donald Trump’s legal strategy for dealing with the special counsel’s Russia probe changes on whim. Trump has cycled through attorneys at a dizzying pace during the 17-month-old investigation. | Manuel Balce Ceneta/AP photo

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Legal experts say the president’s lawyers may be pushing ethical boundaries by communicating with people involved in the Mueller probe.

Donald Trump’s lawyers have maintained an unusual level of contact with attorneys representing clients caught up in the expanding Russia probe, communication that could taint evidence that special counsel Robert Mueller is collecting in his investigation of the president.

They’re not being shy about it either.

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The president’s attorneys talk openly about these “joint defense agreements” that they say were established to keep them connected with lawyers tied to the president’s aides, allies and associates. They took the lead in organizing weekly conference calls earlier this year to strategize with other counsel during an intense period of Mueller’s investigation. In total, Trump’s lawyers have publicly noted they have more than 30 so-called JDAs with Mueller probe targets. Under these agreements, Trump’s attorneys can seek details on everything from what questions and documents Mueller’s team is asking about to who’s on the verge of criminal indictment.

The arrangement itself is routine for complex investigations where scores of people get drawn in as witnesses, subjects and even targets. Staying in touch through formalized JDAs is a way to share information under the protection of attorney-client privilege.

But the Trump team’s use of JDAs has pushed legal boundaries, especially in the instances where the president’s lawyers claim to have maintained these relationships with defense teams representing Mueller targets who have flipped to cooperate with the Russia probe.

For legal experts, it’s an approach in line with the team’s broader strategy to ignore well-established norms, whether through campaign-style attacks on the special counsel or blunt, public assessments of Mueller’s movements.

“This president is mounting a full-court defensive press and is not particularly concerned with the optics of anything,” said a white-collar lawyer who represents a senior Trump official in the Russia investigation.

Discerning Trump’s legal strategy is always a risky endeavor. It changes frequently at the whim of a temperamental president who has cycled through attorneys at a dizzying pace during the 17-month-old investigation. But legal experts say recent public comments from Trump lawyer Rudy Giuliani about JDAs could be part of a longer-term play to question the legitimacy of evidence the special counsel is collecting from cooperating witnesses, including former Trump campaign chairman Paul Manafort.

“They may be trying to plant the seed that something about his cooperation is improper somehow,” said Elie Honig, a former assistant U.S. attorney who prosecuted organized crime cases.

Like the first rule preached in the movie “Fight Club,” commenting publicly about the existence of joint defense agreements is supposed to be verboten. But that doesn’t seem to be the case for the president’s lawyers.

In a recent interview, Giuliani said the president’s lawyers still have JDAs with attorneys representing at least 32 other people pulled into the Russia probe. That number doesn’t include Michael Cohen, the former Trump personal lawyer who pleaded guilty in August to tax evasion, financial fraud and campaign finance charges and has since confirmed on Twitter that he met with Mueller even though his plea didn’t specifically call for cooperation.

It also doesn’t include former national security adviser Michael Flynn, who ended his JDA with Trump’s lawyers last November, just a week before Flynn pleaded guilty in the Mueller probe for lying to the FBI

“This is not entirely unexpected,” Trump personal attorney Jay Sekulow said in a statement issued shortly before Flynn pleaded guilty.

Special counsel Robert Mueller

But it does apparently include a few unexpected figures, including Manafort, the longtime GOP operative who pleaded guilty in September to charges stemming from his lobbying work in Ukraine. As part of his deal with the Mueller team, Manafort agreed to cooperate “fully, truthfully, completely and forthrightly” on all relevant matters. Manafort’s degree of cooperation will factor into the severity of the prison sentence Mueller’s team recommends to a federal judge.

Such cooperation deals usually signal the end of JDAs with others involved in the investigation, similar to how Flynn cut off his arrangement shortly before agreeing to cooperate. According to Giuliani, though, Trump’s attorneys have maintained contact with Manafort’s lawyers throughout the Mueller investigation, including during his high-profile trial in Alexandria, Va., and in the days leading up to and after Manafort made his decision to plead guilty in mid-September.

In Giuliani’s telling, Manafort’s lawyers have remained in the JDA with the president’s attorneys throughout the process because the client has no useful information for Mueller about Trump.

“Defense lawyers talk to each other all the time where, as long as our clients authorize it, therefore we have a better idea of what’s going to happen,” Giuliani said. “That’s very common.”

The Trump-Manafort JDA isn’t the only arrangement that has raised eyebrows among legal experts. Giuliani said Trump’s team is still in contact with lawyers for Allen Weisselberg, the longtime accountant for the president’s family and chief financial officer at the Trump Organization. Federal prosecutors granted Weisselberg immunity in exchange for his testimony in the Cohen investigation, but Giuliani said even that move doesn’t undercut the legal arrangement with the president’s lawyers.

“Allen is not someone who is cooperating,” Giuliani said.

Brett Kavanaugh and Donald Trump

Legal experts say they’re perplexed by Giuliani’s public insistence that JDAs still exist for people known to be talking with federal prosecutors — a practice they say verges on unethical. Such arrangements are also almost guaranteed to raise the ire of Mueller, as prosecutors typically only strike cooperation deals with defendants on the condition that they withdraw from any joint defense setup.

“The only way they can still be in JDA is if they have told prosecutors [the defendant] has nothing on Trump and they believe him,” a second defense lawyer working on the Russia investigation said of the Manafort situation.

But Giuliani’s comments also could be seen as a warning that the president’s lawyers are primed to challenge Mueller’s authority to use some of the evidence collected from Manafort — or other cooperating witnesses — through JDAs, as the bulk of information shared in this manner is supposed to be covered by attorney-client privileges.

That means Trump’s lawyers could try and block Mueller from using evidence in court if they believe the details were gleaned from attorneys operating under the terms of a JDA.

The special counsel’s team does have plenty of room to maneuver, though. For starters, JDAs don’t cover facts a witness knows independent of a JDA. And while information Manafort shared with Trump under the JDA is privileged, the former campaign chairman can also waive that right if he wants to share the information with prosecutors.

Outside of the courtroom, a different standard applies. For instance, Trump’s lawyers can’t stop Mueller from putting the evidence a witness gleaned under a JDA into a report to Congress — the more likely forum for Mueller’s findings, given indications that his team won’t indict a sitting president.

“I am sure that Trump-leaning members of Congress would claim the information is tainted for all purposes, but I don’t think there is any authority for that proposition,” said Jack Townsend, a Virginia-based tax attorney and former Justice Department lawyer.

Kenneth Starr

Mueller also isn’t prohibited from using criminally incriminating details that were shared through a JDA, such as a discussion about a presidential pardon for Manafort in exchange for continuing to fight the special counsel’s charges.

“Imagine if the mafia used a JDA to try to hide a conspiracy to commit crimes. That’ll go no place,” said Norm Eisen, a former top ethics official in the Obama White House and a frequent critic of the Trump administration.

Manafort’s attorneys declined comment when asked about the status of the JDA with the Trump lawyers. Their client met last Monday with Mueller’s team at its Washington, D.C., office.

Joint defense agreements aren’t new to high-profile political investigations. Lawyers representing President Bill Clinton and his White House staffers relied on them during the independent counsel investigation into everything from the Clintons’ Whitewater land deal to the Monica Lewinsky scandal. President George W. Bush’s staffers — but not the president himself — had their own JDA arrangements during the special counsel investigation into who leaked the identity of CIA operative Valerie Plame.

Similarly, those pulled into the Mueller probe — and other lawsuits stemming from the 2016 election — have established both formal and informal means to stay informed.

Lawyers for the longtime Trump operative Roger Stone maintained a JDA with attorneys from Trump’s 2016 campaign as they battled a civil lawsuit brought by two Democratic National Committee donors and a former staffer tied to the hacking of their emails. Stone’s attorneys also have a JDA with lawyers for another former Trump campaign staffer, Michael Caputo, who has been questioned by Mueller.

In the early stages of Manafort’s defense against Mueller’s charges, his lawyers even shared information with lawyers representing Manafort’s longtime deputy Rick Gates. That arrangement dissolved before Gates flipped and pleaded guilty.

Claims of who’s in and who’s out of the Trump legal team’s JDA arrangements aren’t so simple, either. Giuliani told Reuters in August that the president maintained a joint defense agreement with White House counsel Don McGahn. But Bill Burck, the defense lawyer for McGahn, said he never signed on to any JDAs with the president’s attorneys.

“My guys are there to be witnesses,” Burck told POLITICO in January. “They’re there to tell whatever it is they’re supposed to tell, to answer questions truthfully. They’re not coordinating strategy with the White House.”

Two other Burck clients — former White House chief of staff Reince Priebus and ex-White House senior strategist Stephen Bannon — also don’t have JDAs with the president’s lawyers.

Lawyers close to the Russia probe said Giuliani’s comments about the use of JDAs may also just be his way of spinning through a sensitive topic that could ignite his famously cantankerous client. One attorney close to the White House warned against interpreting his comments as part of a larger long-term strategy to undermine Mueller’s efforts.

“That gives Rudy way too much credit for sanity and clarity. As a strategist, he’s just not in the game,” said an attorney close to the White House.

Annemarie McAvoy, a former defense attorney and media consultant for Gates, said Giuliani’s remarks about JDAs may be aimed more at influencing the “court of public opinion” ahead of the midterm elections and with the prospect that Democrats could soon be armed with Mueller’s findings and launch impeachment proceedings.

“They’re trying to quash any thought that Trump is somehow at risk by coming out right away saying we don’t think he has any information that’s workable about Trump,” she said. “I’m sure they want to keep a positive face on it.”

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