According to a constitutional law professor, the joint defense agreement (JDA) agreed to by attorneys for Donald Trump and Paul Manafort may blow up in the president's face, placing him in even greater legal peril.
Writing in the Washington Post, University of California at San Diego law professor Harry Littman -- who previously served as a U.S. attorney -- stated that Manafort lawyer Kevin Downing, by agreeing to share information with Trump's legal team, has opened himself up to a subpoena from special counsel Robert Mueller and can be compelled to divulge everything he has told them.
"Following the implosion of Paul Manafort’s cooperation agreement with special counsel Robert S. Mueller III , a lawyer for President Trump casually announced that Manafort’s lawyers had been briefing Trump’s lawyers about his sessions with the Mueller team all along," Littman wrote. "This revelation, far from routine, in fact is jaw-dropping — and it has significant legal and political implications."
"Once a witness enters into a cooperation agreement with the government — which he does for the very valuable consideration of a potential reduction in sentence — he has agreed contractually to a full, no-holds-barred provision of information," he explained. "The universal understanding is that the witness will not run back and reveal the government’s case to potential suspects."
He then elaborated on what that means.
"A witness is normally free to talk to defense attorneys if he chooses. A cooperator is not (and that holds whether it is expressly spelled out in the agreement)," he wrote. "Whatever Team Trump may assert, the conversations between some combination of Manafort, Trump and the lawyers for both of them were not privileged, and Mueller is entitled to know their contents."
Littman then explained how the JDA, which is entirely legal, has specific requirements that don't apply in the government's case against Manafort which now puts Trump in deeper legal jeopardy.
"The JDA can operate only among parties who , in fact, have a common interest. A defendant cannot simply pick and choose people he wants to talk to and thereafter claim that a conversation is privileged," he explained. "And when Manafort entered into the cooperation agreement with the government, he ceased to have a common interest with other defendants, including the president, as a matter of law."
"Thus, Mueller is fully entitled to subpoena Manafort counsel Kevin Downing and whichever Trump counsel spoke with him (one trusts it wasn’t Emmet Flood, who is too savvy for such shenanigans) and force them to reveal every word of the discussions," he concluded.
Littman added that the report also indicates more malfeasance by Trump.
"The open pipeline between cooperator Manafort and suspect Trump may have been not only extraordinary but also criminal," He suggested. "On Manafort and Downing’s end, there is a circumstantial case for obstruction of justice. What purpose other than an attempt to 'influence, obstruct, or impede' the investigation of the president can be discerned from Manafort’s service as a double agent? And on the Trump side, the communications emit a strong scent of illegal witness tampering (and possibly obstruction as well)."
You can read his full analysis here.