Trump's team is using a shady legal maneuver to coordinate his defense strategy with other key figures in the Russia probe.
As special counsel Robert Mueller's investigation continues to expand, Trump's lawyers have deployed a legal strategy that lets them share information and coordinate with other targets and witnesses in the Russia probe — a strategy that sure looks a lot like collusion.
According to Politico, Trump's legal team is using a web of joint defense agreements (JDAs) to maintain contact with more than 30 key figures at the center of the Russia investigation. These agreements allow defense attorneys and defendants to get together, share details about their cases, and make sure they're not implicating each other.
They also let defendants share information about what they have discussed with the special counsel — essentially giving Trump's lawyers a way to quietly keep track of what Mueller's team is doing, who they're interested in, and what types of questions they're asking.
In cases like this, JDAs are not an uncommon practice.
However, the extent of communication between Trump's legal team and lawyers for more than 30 Trump allies — including those who have flipped and are now cooperating with Mueller — is quite unusual and could potentially be a maneuver to taint the entire investigation, Politico reports.
Included among those 30 people are former campaign chairman Paul Manafort, who flipped and became a cooperating witness after being convicted of multiple felonies in August, and Allen Weisselberg, the longtime chief financial officer for the Trump Organization who was granted immunity in exchange for providing information about former Trump fixer Michael Cohen.
Trump’s lawyers have stayed in close contact with Manafort’s defense team since the beginning of the Mueller investigation, Politico reports, including during Manafort's trial this summer and in the days surrounding his decision to plead guilty in September.
According to Politico, legal experts say it's highly unusual, verging on unethical, to maintain JDAs with people who are known to be cooperating with federal prosecutors. There is speculation that Manafort may be using the JDA to signal his loyalty to Trump and set the stage for a future pardon.
Legal experts also pointed to recent comments made by Trump attorney Rudy Giuliani as a sign that Trump's team may be using the agreements as part of a broader strategy to call into question the legitimacy of evidence collected from cooperating witnesses like Manafort.
Typically, the existence of such agreements is not even publicly acknowledged, but in a recent interview, Giuliani actually boasted about the number of JDAs Trump's legal team has with other key figures in the Russia probe.
Some experts interpreted Giuliani's remarks as an indicator that the agreements may be exploited by Trump's team in an effort to sabotage the special counsel's work, particularly when it comes to crucial witnesses like Manafort.
"They may be trying to plant the seed that something about [Manafort's] cooperation is improper somehow," former assistant U.S. attorney Elie Honig told Politico.
But while Trump may hope to use the agreements to keep Mueller in his sight and keep himself out of trouble, it's a strategy that carries a risk of backfiring in a big way.
As Politico noted, maintaining such an agreement is "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."
Furthermore, although information shared through JDAs is privileged, the arrangement is not airtight.
For example, JDAs cannot stop the special counsel from sharing details that are independently known by a witness, and witnesses can waive the right to keep the information privileged if they wish to share it with prosecutors. Manafort's prison sentence hinges on how much valuable information he shares with Mueller's team.
Perhaps most importantly, Mueller isn’t prohibited from using incriminating details that were shared through a JDA, nor is he prohibited from sharing any information at all outside of a criminal courtroom — like in a report to Congress.
"Imagine if the mafia used a JDA to try to hide a conspiracy to commit crimes," said Norm Eisen, a former top ethics official in the Obama White House. "That’ll go no place."
Given that Mueller has remained several steps ahead for the duration of the investigation — even as Trump has desperately tried anything he can think of to undermine the probe — this may prove to be a risk that Trump will come to wish he had never taken.
Published with permission of The American Independent Foundation.