Cont: Breaking: Mueller Grand Jury charges filed, arrests as soon as Monday pt 2

[BadBoy]

It's exciting to watch the give and take, the match of wits, during a pinning jello the the wall match.

If you throw it at the wall hard enough, some will stick. And most will leave a thin veneer of yellow stain that's difficult to scrub out

 

[The Big Dog]

Joint defense against what? Trump contends that no laws were broken, and as of yet none of them have been charged with anything, so what valid reason do they have to "debrief" witnesses other than that they need to know what people have said so that they can keep their stories straight?

Subjects and targets of federal criminal investigations frequently employ joint defense agreements, the fact that they have entered into such an agreement has been known for a long time.

 

[BadBoy]

Giuliani says that Trump's legal team has "debriefed all of Mueller's witnesses".

Is this an admission of witness tampering?

Isn't a debrief meant to happen after the event, not before?

 

[NoahFence]

Subjects and targets of federal criminal investigations frequently employ joint defense agreements, the fact that they have entered into such an agreement has been known for a long time.

As if you can speak as some sort of authority on that.

 

[PhantomWolf]

Subjects and targets of federal criminal investigations frequently employ joint defense agreements, the fact that they have entered into such an agreement has been known for a long time.

Who are these subjects and Targets? Hasn't Trump declared multiple times that he has been told that he's not the Target of the Investigation? As to the others, who has been named as a target?

 

[Squeegee Beckenheim]

Lets take this step by step: do you agree that "debriefing" witnesses by lawyers is not witness tampering?

Yes or no?

I'll answer your question if you answer mine. And if you define what you believe "debriefing" to mean in this context.

 

[The Greater Fool]

If you throw it at the wall hard enough, some will stick. And most will leave a thin veneer of yellow stain that's difficult to scrub out

I must add that the color commentary is also very entertaining. Insightful at times, too.

 

[Drewbot]

Throw him into the pond! if he floats, then he colluded.

 

[The Don]

Throw him into the pond! if he floats, then he colluded.

Fat's less dense than muscle - he'll float regardless of whether or not he colluded.

 

[plague311]

Haven't Coehen, Flynn, and a few others canceled their joint agreements because they flipped? How many agreements does he have left? Might be worth looking into because if he isn't the target as he claims, and his existing agreements are over, he should have to wait.

 

[The Big Dog]

Who are these subjects and Targets? Hasn't Trump declared multiple times that he has been told that he's not the Target of the Investigation? As to the others, who has been named as a target?

Cohen is a target and is a member of the joint defense agreement, my understanding is that Trump is a subject.

 

[The Big Dog]

I'll answer your question if you answer mine. And if you define what you believe "debriefing" to mean in this context.

I'll take that as a No, thanks for posting.

 

[Squeegee Beckenheim]

I'll take that as a No, thanks for posting.

It's not a "no". How can I answer the question if I don't know what you mean by the key word?

And I'll note that, for the second time of asking, you have refused to answer my question. Then I'll note the irony of you trying to turn that back around on me.

 

[The Big Dog]

It's not a "no". How can I answer the question if I don't know what you mean by the key word?

And I'll note that, for the second time of asking, you have refused to answer my question. Then I'll note the irony of you trying to turn that back around on me.

Sorry, not wasting my time with someone feigning obtuseness.

 

[The Big Dog]

Here is a fairly basic article explaining joint defense agreements.

https://www.zuckerman.com/sites/default/files/2018-01/Representing-individual-officers-directors.pdf

 

[Squeegee Beckenheim]

Sorry, not wasting my time with someone feigning obtuseness.

Translation: "I can't actually answer the question, so I'm going to pretend like it's your fault and thus maintain my super-cool reputation for being the cleverest person on this whole website, which everybody thinks because I'm super-smart!"

 

[Squeegee Beckenheim]

https://twitter.com/SethAbramson/status/1015984929094725632

The short answer is that simply interviewing witnesses is by no means illegal. The question is what was said to the witnesses and the manner in which they were approached.

2/ That said, I'll say that Trump has not been charged with anything, so it's a little bit odd for his team to be conducting an investigation trying to find out what his associates are telling law enforcement. Especially at a time when Trump is loudly insisting on his innocence.

3/ That is, if you know you've done nothing wrong, all you want is for witnesses to tell law enforcement the truth, which in no way requires that you contact them. And indeed, the standard practice here, absent charges, would be to do nothing and assume they're being truthful.

4/ This is especially true when you are the President of the United States of America, and there is both a quality of intimidation and the implicit possibility of a pardon behind any contact you or members of your team have with a witness or someone under criminal investigation.

 

[Squeegee Beckenheim]

https://twitter.com/LannyDavis/status/1016280422928576513

Did @rudygiuliani really say on Sunday shows that @michaelcohen212 should cooperate with prosecutors and tell the truth? Seriously? Is that Trump and Giuliani definition of “truth”? Trump/Giuliani next to the word “truth” = oxymoron. Stay tuned. #thetruthmatters

Lanny Davis is Michael Cohen's lawyer.

https://mobile.twitter.com/i/web/status/1015759394229846016

Why is my representing @MichaelCohen212 as attorney of such high interest? Not about me. It’s about a nation’s yearning for truth. And Michael Cohen has said it’s time for him to speak the truth and put his family and Country first. I am glad to help him.

 

[The Big Dog]

https://twitter.com/SethAbramson/status/1015984929094725632

Hoo boy, the Poet thinks it is odd that the subjects/targets of a federal investigation enter into a joint defense agreement?

It is as if he is deliberately trying to make each and every person who reads his tweets dumber.

I have a dream, that people spamming links from twitter do the slightest bit of research before exposing people to grossly uninformed opinions like these.

 

[quadraginta]

Here is a fairly basic article explaining joint defense agreements.

https://www.zuckerman.com/sites/default/files/2018-01/Representing-individual-officers-directors.pdf

This is an interesting article. Thank you for the link.

However, it doesn't do what you seem to have intended it to do, which is to explain why and on what basis Trump's legal team has "debriefed all of Mueller's witnesses".

A "joint defense agreement" is usually an agreement between multiple lawyers and the defendants in a trial who are their respective clients which seeks an exception to the normal rules regarding waiver of attorney-client privilege.

In short, it allows them (if it is accepted by the court) to communicate among themselves without creating the waiver of privilege which would normally be the case if some third party ... in this case being the other lawyers and clients ... shared communications otherwise protected by that privilege.

A key concept here is "defendants". Not witnesses.

Guiliani spoke yesterday in some greater depth on the subject of this supposed joint defense agreement he has been referring to when he was interviewed on CNN's State of the Union.

Trump attorney Rudy Giuliani appeared on CNN’s State of the Union to discuss Robert Mueller‘s investigation on Sunday, and addressed the question of the joint defense agreement that reportedly existed between former Trump attorney Michael Cohen and President Donald Trump.

In an interview with ABC last week, Cohen seemed to indicate that the agreement was over. It was also reported that Michael Flynn was out of the agreement around the same time.

On State of the Union, Dana Bash asked Giuliani about the agreement.

“You mentioned a joint defense agreement that your team has with some of the witnesses,” she said. “Does the Trump team still join in their defense with Michael Cohen’s team, meaning do you still have this joint defense agreement?”

Giuliani confirmed the existence of an agreement between witnesses, but would not say who was or was not part of it.

“You know, Dana, I’m not sure I’m allowed to comment on that. Those are attorney-client privilege and it involves a lot of other people,” he began. “Yes, there is a joint defense agreement, but I don’t think I can identify all the people who are in it, people who are out of it.”

He did add one condition though. ‘If someone gets indicted they’re basically out of it. I can’t go much further than that,” he said.

For starters, usually a joint defense agreement isn't something which is engaged in between witnesses. It is a legal contract which, subject to the approval of the court presiding over a case, allows the attorneys and clients of defendants in a case to confer and share privileged information with each other without waiving that privilege.

Note the final statement in that quote;

"He did add one condition though. ‘If someone gets indicted they’re basically out of it. I can’t go much further than that,” he said."​

Giuliani seems to be playing somewhat fast and loose with the term "joint defense agreement". According to him, once someone is an actual defendant they are no longer party to the agreement. That's pretty much the opposite of the concept.

What he seems to be referring to would instead probably be more accurately described as a "common interest agreement", which has a similar purpose, but is not specifically constructed to facilitate the sharing of privileged information between various defendants and their respective lawyers involved in the same trial. Instead it seeks to do the same thing with lawyers and their clients who are sharing information of common interest to the parties involved which they would like to remain protected by attorney-client privilege.

The concepts are related, but usually deemed to be different in nature, the fundamental difference being that the clients in question are not mutual defendants in ongoing litigation. (Here's a short description)


In that interview quoted above, Giuliani also said this;

"Giuliani confirmed the existence of an agreement between witnesses, but would not say who was or was not part of it.

“You know, Dana, I’m not sure I’m allowed to comment on that. Those are attorney-client privilege and it involves a lot of other people,” he began. “Yes, there is a joint defense agreement, but I don’t think I can identify all the people who are in it, people who are out of it.”"​

Since the purpose of such an agreement (either a "joint defense agreement" or a "common interest agreement") is to seek an exception to the normal legal rules governing waiver of attorney-client privilege, any such agreement would need the approval of a court to have any validity. The parties to such an agreement would be a matter of public record. If the agreement was accepted and recognized by the court then all of the communications between the various lawyers and clients would share confidentiality privilege, but it is unlikely that their mere participation in such an agreement would be.

Interestingly, if the court in question chose not to recognize the agreement, something they can and have done, then the communications between the several attorneys and clients party to the agreement would not be protected as attorney-client privilege, since that privilege would be considered waived by the simple act of sharing with some third party.

***************************************

Several questions are evident.



• Who, exactly, was "debriefed" by the Trump legal team, as Giuliani claims?

• Why is he being so cagey about their identities?

• Were all of those who were "debriefed" actual, legal parties to this apparently misnamed "judicial defense agreement" he keeps bringing up?

• Why would the simple act of indictment mandate their removal from the agreement, since it is the agreement which makes their communications with the rest of the parties privileged?

• Is there any record of what was said in these "debriefings", and by whom?


The article which you referenced, "Representing Individual
Officers and Directors", written by the Corporate Integrity and White Collar Crime Committee, included this interesting caution;

An added pitfall is that the overly zealous criminal defense attorney must avoid even the appearance of witness tampering or obstruction of justice. Because federal criminal procedure lacks discovery, all criminal defense attorneys try to gain critical information through witness interviews.
It is received wisdom in the defense bar that many prosecutors scrutinize the
manner in which defense counsel conduct these interviews

This appears to bear on the very same concern being brought up here, that the purpose for Trump's legal team having "debriefed all of Mueller's witnesses" might be less than benign.