Posted on 11/29/2018 6:37:40 AM PST by yesthatjallen
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.
Prosecutors who are not afraid of their case generally have no problem with witnesses sharing information because the answers are the answers. Prosecutors know that the reports of the interview will likely be disclosed at some point. And the evidence either supports the witness or it does not.
Witnesses who refuse to speak to the defense are by and large trying to hide something and have reasons to shade their testimony. The primary reason, of course, is to try and appease the prosecutor, who holds the keys to the jailhouse.
This case is different because Trump also holds the keys. But that does not make it wrong for Trump’s lawyers to request to know what Manafort is saying.
Back in the 90s, one appellate court and a number of trial courts held that it was a crime for prosecutors to offer witnesses sentencing reductions in exchange for their testimony. The courts reasoned that a prosecutor dangling benefits for testimony was no different than a defense lawyer bribing a witness. But those cases were reversed and prosecutors went back to the age-old practice.
Defense lawyers still, however, cannot offer witnesses anything for their testimony. This is as it should be. It’s too bad that the same rules do not apply to prosecutors.
That said, if Trump’s lawyers did not try to speak with Manafort and his lawyers, it would be legal malpractice. To be clear, though, they cannot offer Manafort a pardon in exchange for his testimony. Manafort’s lawyers, on the other hand, would not be doing their job if they were not trying to obtain a pardon.
If the pundits have a problem with this, they should also be up in arms about Manafort trying to obtain a sentencing reduction from the prosecution team, which happens every single day in every single courthouse in the criminal justice system.
David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C., and as an assistant federal public defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.
One thing’s for sure: the old “appearance of impropriety” nonsense went into the dumpster during Hussein’s administration.
Not in theory....
Everything Republicans do is questionable in the eyes of Democrats.
Hardly anything Democrats do is questioned by Democrats.
These are the people the Republicans have thought they should try to get along with.
Prosecutors have been granted extreme immunity by the Supreme Court.
Prosecutors can do a great many things that would be illegal for others to do, such as ask for false testimony, have great personal conflicts of interest, and convene multiple grand juries to get the indictment they want.
This article brings up an interesting point.
Why is it accepted, and even ENCOURAGED, to give a person immunity in exchange for testimony FOR the prosecution, but impeachable if Trump, as “defendant” offered immunity in the form of a pardon, in exchange for testimony.
So long as the testimony is truthful, that is. And why is it assumed that if Trump did this, the testimony would clearly be a lie, but when the prosecuters do it, the testimony is assumed to be the truth?
I have the perfect candidate for his running mate - Ocasio Cortez...Let the whole country see her!!!!
I have to come up with a name for her but haven’t yet...except she reminds me of whatever that TV show was years ago with the talking horse...
Have no idea how that got here - I was looking at the thread on Sanders....sorry.. I’ll copy and paste it on the correct one as I don’t want anyone to miss my superior knowledge and wit.
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