There has been a lot of hand-wringing over the recent revelation that Paul Manafort’s lawyers have been speaking to Donald Trump’s lawyers. Pundits have said breathlessly that such conduct is obstructive and that only mob lawyers engage in such behavior. Nothing could be further from the truth — by itself, there is nothing obstructive about the lawyers speaking with each other and sharing information.
Witnesses do not belong to one side or the other.
Paul Manafort has pleaded guilty and as part of his plea agreement has promised to answer Mueller’s questions truthfully. Mueller did not ask Manafort to keep those questions and answers secret, nor could he make such a request. This situation comes up frequently in federal criminal cases outside of mob cases. In one common scenario, employees who are questioned by federal authorities are often asked by their employers to share information and do so all of the time. There is nothing nefarious or obstructive about this. Several courts have explained that it is improper for a prosecutor to tell a government witness not to talk to the defense.
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Thursday, November 29, 2018
Witnesses do not belong to one side or the other
I use the current situation with Mueller, Manafort, and Trump as a vehicle to discuss the issue this morning in The Hill:
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8 comments:
So tired of all of these ex-AUSAs on television.
AUSAs still instruct 'their' witnesses to not speak with the defense.
And promptly accuse it of witness tampering or obstruction for just reaching out.
What about a defense attorney reaching out to a government witness to prepare for trial. Invariably, you will be accused of witness tampering, etc but when they send an FBI agent out to someone's house and if any false information is given or that which the government thinks is not truthful, you get hit with an obstruction charge. The whole system, from judges on down, is stacked in favor of the government. The main function of a defense attorney nowadays is to convince his client of this truth. Parenthetically, it is comforting to see the supremes beating up on the government yesterday in a civil forfeiture case.
Totally agree. On a case I spoke to a government witness out of district and got a call from the US Attorney's Office threatening me with an obstruction indictment. Ironically, in my experience the most ethically challenged defense lawyers are the former prosecutors. And no wonder, when they are prosecutors the judges continually excuse their misconduct.
But if your representing a cooperator, its really, really, stupid. It also puts the interests of a non-client over a client.
Why is it stupid? Because you don't want to make the AUSA mad?
Anyway, I think in this case it makes perfect sense. Manafort is 69 years old. With his exposure even if he gets a 5K or Rule 35 he most likely will spend the rest of his life in prison. A pardon is his best shot.
This problem shows how important it is that each witness have his or her own counsel so that counsel may speak to counsel. That way, the information is developed without the type of direct contact with a witness that the Government loathes. Now, of course, when the attorney opens his big mouth and tells the press that the attorney for the coopertating witness has been sharing information with teh target of the investigation (ala Mr. Rudy), that is not the smartest move.
Did Rudy say that Downing was sharing directly with Trump? Facts matter.
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