NAPOLITANO: Over by Thanksgiving
In August, when President Donald Trump’s lawyers persuaded him to refrain from attacking independent counsel Robert Mueller publicly -- he had many times called Mueller’s investigation a “witch hunt” -- they also told him that the investigation was not aimed at him and not to worry because it would be over by Thanksgiving.
These are the same lawyers who revealed a fissure in the strategy of the president’s legal team. On one side are presidential lawyers who want to cooperate fully with Mueller because they are convinced that the president has nothing to fear from the public revelation of truthful information.
On the other side are presidential lawyers who believe that the office of the presidency is being diminished by its subservient surrendering of all demanded documents and emails to Mueller’s investigators -- materials that skilled prosecutors might somehow be able to use against the president or members of his inner circle someday.
Adding to this is the presence of Gen. John Kelly, the White House chief of staff, a non-lawyer, who serves as the referee when the president’s lawyers disagree. That disagreement was heightened on Thanksgiving eve when a letter arrived at the White House. It must have been received as if it were a thunderbolt and no doubt generated bitter reminders of the “over by Thanksgiving” remark made to Trump personally.
Here is the back story.
When the government is investigating or prosecuting a group of people who have some common bond or prior relationship or mutual interest, it is not uncommon for their lawyers to enter into a joint defense agreement. This type of agreement is a written contract that generally governs the relationship of the potential defendants to one another and their joint relationship to the government. Though no two agreements are identical, they generally provide for the sharing of communications to and from the government, the sharing of evidence and a joint defense.
So if one of the lawyers in the agreement receives a request from the government for documents from that lawyer’s client, that lawyer will share the request and copies of the surrendered documents with the other lawyers who have signed the agreement.
The joint defense established by the agreement -- we will sink or swim together -- prohibits any person whose lawyer has signed the agreement from pointing a finger at any other person whose lawyer has signed the agreement. This united front often strengthens the defense team and frustrates the government. These agreements are common, lawful and binding until any potential defendant withdraws.
Lawyers must be very careful about what they have agreed to do, because a lawyer’s first and core loyalty is to her or his client, not to the group of folks represented by fellow counselors who have signed the agreement.
In the Mueller investigation, lawyers for some of the major targets -- but not all -- signed such an agreement. Those who did include lawyers for the president and lawyers for his former national security adviser, Michael Flynn.
Last Wednesday evening, after Trump had left the White House for a Thanksgiving weekend at his Florida estate, Flynn’s lawyers delivered a letter to lawyers for all the others in the agreement, including Don McGahn, who is White House counsel, to announce their withdrawal from it. This means that they can no longer comply with the terms of the agreement because they are about to have communications with Mueller’s team that they cannot share with the lawyers for the others.
That can only mean that Flynn is offering to give the government something. But Mueller’s prosecutors are threatening Flynn’s liberty. Why would he help them?
The retired lieutenant general faces a host of potential felonies -- conspiracy to kidnap a foreign national, conducting a private foreign policy with a foreign government, failing to register as a foreign agent, failing to report income from a foreign government, working for a foreign government while working for the U.S. government, lying to FBI agents -- all of which expose him to decades of federal prison time.
Flynn might help Mueller prosecute others because Mueller could reduce Flynn’s prison exposure substantially in return for credible evidence against another person in the agreement.
The tantalizing question remains: What evidence does Flynn have that Mueller wants or can use? Here is where this business of independent counsels -- prosecutors not answerable through normal Department of Justice channels -- can become dangerous to personal liberty.
Because this independent counsel’s office has been established solely to examine whether any Americans aided the Russian assault on our electoral system in the months leading up to the presidential election in 2016, Mueller, who heads that office, like his many predecessors who were appointed solely to investigate one person or one crime or one series of events, will have a natural tendency to indict someone for something, if only to justify his office’s existence.
We have already seen this in the charges against three former Trump colleagues -- for lying to the FBI and for money laundering -- which have no visible connection to the Russians or the election. Though there may be no visible connection to the Russians or the election, there may be an invisible one, so to speak.
Uncovering that kind of connection, which is brought about by fear of incarceration and a willingness to trade knowledge of dirt on former compatriots in return for one’s own freedom, is a technique mastered by prosecutors for nearly a century. But is this type of dirt, which is essentially purchased by the government by shaving years off federal prison exposure, believable?
Regrettably, this purchased, bribed testimony is, more often than not, believed by jurors, even though they are told of the deals that brought the evidence to them. Though Trump’s lawyers are gainsaying this Flynn reversal, they must know how potentially dangerous it is to their client. Flynn was Trump’s nearly constant confidant from June 2015 to February 2017.
Thanksgiving is over. Mueller and his team remain hard at work.