Renewable Revolution

harpie says:
September 15, 2018 at 8:51 am
Yesterday on Twitter Marcy responded to @StanleyCohenLaw:

SCL 6:56 PM – 14 Sep 2018 3/statements in furtherance of the conspiracy are an execption to the hearsay rule once prima facie conspiracy is established and the participation of declarant. Confrontation the only limit & statements by unindicted coconspirator i.e. the president are admissible as 2 others.

emptywheel: 7:03 PM – 14 Sep 2018 Yup. Hearsay exception is going to light up the Trump conspiracy.

…ordering popcorn now…

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Bob Conyers says:
September 15, 2018 at 10:40 am
Can someone unpack this for us non-lawyers?

I have a basic sense of hearsay, but I’m quite foggy on how it’s admissable here, and even more, why it’s such a threat.

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bmaz says:
September 15, 2018 at 11:09 am
See Rule of Evidence 801 d2E:

(d) Statements That Are Not Hearsay.
 A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement.
 The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A)
 is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B)
 is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground
; or

(C)
 identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party’s Statement.
 The statement is offered against an opposing party and:

(A)
 was made by the party in an individual or representative capacity;

(B)
 is one the party manifested that it adopted or believed to be true;

(C)
 was made by a person whom the party authorized to make a statement on the subject;

(D)
 was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E)
 was made by the party’s coconspirator during and in furtherance of the conspiracy.

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orionATL says:
September 15, 2018 at 11:01 am
i had just read that manafort had pleaded guilty to two counts, one of which was conspiracy to defraud the u.s. that seems to me to be a very important outcome for the osc team.

i’ve never been too sure of that particular charge re a jury’s decision, though i no doubt mueller’s team (who actually know the law ) have confidence in their decision to deploy it.

at the very least now, manafort’s guilty plea sets up confraudus as the hurdle other conspirators better be able to jump cleanly over or it’s a face full of dirt and time in the slammer for them.

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harpie says:
September 15, 2018 at 9:34 am
Justin Hendrix:

I’m interested whether he [Manafort] helped funnel payments to right wing media sites on behalf of Yanukovich. / Per this: [links to this 2013 article]: Exclusive: How Ukraine Wooed Conservative Websites  Rosie Gray 7/16/13 https://www.buzzfeednews.com/article/rosiegray/exclusive-how-ukraine-wooed-conservative-websites

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Willis Warren says:
September 15, 2018 at 10:15 am
This is just amazing stuff, Marcy.  Wow

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Trip says:
September 15, 2018 at 10:37 am
Marcy, I think you retweeted something yesterday about Dowd emailing all of the people in the JDA that, paraphrased, ‘Manafort doesn’t know anything about the campaign’ (which is insane on the face of it since he was a campaign chairman, but I digress).

Doesn’t Dowd put himself at risk of obstruction? He quit. He is no longer Trump’s attorney. Isn’t everything he says AFTER resigning not under attorney/client privilege? Plus, it may be have been an utterance in the furtherance of a crime: obstruction, (keeping everyone zipped without being privy to Manafort’s cooperation)?

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Trip says:
September 15, 2018 at 11:10 am
Apparently not.

In case anyone is interested:
Id.at 392; see also IBJ Whitehall
Bank and Trust Co. v. Corey & Associates, Inc., 1999 WL 617842, at *3
(M.D. Ill. Aug. 12, 1999) (joint defense privilege cannot be waived without the consent of all parties to the defense, except when one of the joint defendants becomes an adverse party in the litigation).
Because cooperating with the government, and even testifying against a former joint defense member, is generally not deemed “actually adverse” to the interests of other joint defense members, it does not trigger a waiver of the privilege. Instead, even when one defendant agrees to cooperate with the government and testify against his co-defendants, the assumption is that joint defense information will remain privileged, and will not be useable against the producing party.

THE HENKEDECISION •
In United States v. Henke
, 222 F.3d 633 (9th Cir. 2000)
https://durietangri.com/sites/default/files/drafting_0.pdf

Joint defense agreements: the benefits and the risks
https://www.americanbar.org/news/abanews/aba-news-archives/2013/07/joint_defense_agreem.html

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bmaz says:
September 15, 2018 at 11:28 am
First, let’s stick to criminal context as opposed to civil. Second, much depends on the nature of the JDA. Without seeing the language there is simply no way to know how it might be enforced. Lastly, I have issues about a JDA where most of the 37….37….people involved are not even defendants per se.

There is no easy answer at this point to this question. Googling stuff will not help that fact.

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Trip says:
September 15, 2018 at 11:32 am
I’m not a lawyer. I’m just trying to understand. And yes, that 37 people are involved is both astounding and incomprehensible.

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TheraP says:
September 15, 2018 at 12:32 pm
Could we add disturbing?  (Thanks for asking these questions, Trip!)

I honestly hope it’s also a sign of 37 very anxious possible defendants.   (Or conspirators?)

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Tracy says:
September 15, 2018 at 1:23 pm
Defendants vs. witnesses (as I think these 37 were described), that is interesting.

It all seems v wrong headed!! Aren’t there ethics people all over this?

But yeah, what happens now re: that JDA/ people still in/ why Dowd still involved/ what happens w/ Manafort sounds v unclear from all the comments I’ve read here, and perhaps impossible to know w/out seeing the actual JDA. Well, I look forward to a future post about it

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earlofhuntingdon says:
September 15, 2018 at 11:38 am
This gets complicated, but the short version is that Dowd is bound by the attorney-client privilege to keep confidential permanently information he learned about during the representation.

There are few exceptions.  One is that if the client and attorney litigate the bill or something else regarding the representation, then the privilege – which is the client’s – is deemed waived by the client.  That is, the attorney is able to use information learned during the representation to defend herself against claims made by the client.

After Dowd’s representation of Trump ceased, he would have to keep confidential whatever he learned during the representation, where that information is covered by the privilege.  Their private discussions, for example, would be covered.

Discussions in front of non-lawyers – other than Dowd’s staff or people working for him in connection with the representation (e.g., an accountant) – or lawyers not acting for Trump and not bound by a joint defense or similar agreement with Trump, would not be covered. If Trump opens up about privileged information in front of his own staff, for example, then he’s waived privilege.

The usual course for a lawyer, post-representation, is to keep shtum about it.

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Trip says:
September 15, 2018 at 11:47 am
Thanks.

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Tracy says:
September 15, 2018 at 1:29 pm
And Earl, do you know why according to Maddow (I think from Fear) Ty Cobb does NOT have privilege w/ Trump – why Cobb can be called as a witness – and why when T learned this he was like: oh ****, I told him a lot of stuff.

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Aneela says:
September 15, 2018 at 11:12 am
Marcy,

“Had he succeeded, perhaps Trump would have recognized the jeopardy that put Manfort (and, presumably, himself) in. Perhaps he would have taken that moment to pardon Manafort, and save him from that jeopardy.”

Not understanding why, since they were in a joint defense agreement, Manafort’s lawyers couldn’t just inform Trump’s lawyers of what Rick Gates had given up rather than having to go through the circuitous route of reading into the public record?

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Trip says:
September 15, 2018 at 11:29 am
Aside from what he knew or didn’t know, or the potential pipeline, it would seem that they were keeping the JDA on the down lo, at least as far as the public was concerned. Who knew until a few days ago? It looks kind of bad when some are convicted of crimes, and the others look guilty by association, in a sense, since they considered their interests ‘equal’ via the agreement. I realize that is perception more than fact, but in politics perception is everything.

Trump was kind of between a rock and hard place with the pardon. If he had done this before the midterms and before Kavanaugh was brought up, the public perception would have been that of guilt and obstruction. That would make Kavanaugh’s appointment even more loaded. I think the GOP wouldn’t let him do it when it would have served him best (because they were invested in their own agendas), and threatened to withdraw support from him (someone like McConnell comes to mind).

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bmaz says:
September 15, 2018 at 11:56 am
JDA’s are never public information. The fact that it is closely held is as it should be.

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Trip says:
September 15, 2018 at 12:00 pm
So then Rudy shouldn’t have should have kept it shut, as usual?

Does the gov’t typically know before trials, or is this something they learn during the trial? Or perhaps, is it something that is attempted to be kept secret throughout?

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bmaz says:
September 15, 2018 at 12:09 pm
Government may or may not directly learn of a JDA, but usually do not get affirmatively told. More often they can just guess by how their interactions with the lot of the defendants’ attorneys goes.

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Trip says:
September 15, 2018 at 12:13 pm
Thanks.

It sounds like Rudy was trying to send a message, or was just being stupid with this declaration.

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bmaz says:
September 15, 2018 at 12:21 pm
Hard to tell with Rudy!

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TheraP says:
September 15, 2018 at 12:22 pm
Since some of these 37 are in this Defense Agreement as parties to a conspiracy, and at least one of them is a known serial liar (even to an attorney), does that potentially make this “agreement” also part of a conspiracy? Or Obstruction of Justice? And if so, would that allow Mueller or a Grand Jury to pry into some of this?

(Hold your fire, please. I am a tender, if naive, soul and not out to incur your wrath. Or to disturb the flow of information here.)

Thanks for whatever help you can provide. (As somehow this grand effort – of alleged conspirators – to collaborate on defense feels disturbing to me. Also to Justice being done.)

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bmaz says:
September 15, 2018 at 12:48 pm
The answer is, I don’t know, maybe! Maybe not. Who knows? Again, so much comes down to how the actual JDA’s are worded and/or agreed to.

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TheraP says:
September 15, 2018 at 12:58 pm
Thanks! So they’re open questions. And we’ll see how this plays out.

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Trip says:
September 15, 2018 at 11:18 am
Do we think the stipulation in Manafort’s cooperation agreement to offer info to the gov’t without his attorney(s), frees them (lawyers) from negative consequences associated therein with the JDA? Or does it not matter since the attorney agreed on behalf of Manafort?

*I know this is probably a very dumb question, but not being a lawyer, I’m having full comprehension issues.

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orionATL says:
September 15, 2018 at 11:20 am
i found this discussion of manafort’s plea deal useful:

https://www.washingtonpost.com/politics/2018/09/15/i-was-prosecutor-heres-what-stands-out-me-about-manaforts-deal-with-mueller/?

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Willis Warren says:
September 15, 2018 at 11:28 am
WAPO fire walled, what’s the takeaway?

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TheraP says:
September 15, 2018 at 12:11 pm
To evade the fire wall, erasing history and cache generally works for me. Either that or set up an account to post. (That’s still free, I believe.)

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Thomas says:
September 15, 2018 at 11:30 am
From what I piece together from public information:

It seems likely that the back and forth between Russians and the Trump campaign was not direct communications between individuals, but rather, one individual (Manafort, eg) would send a message to another (Kiliminick, eg), who would then share it with a group(Russian Intel, oligarchs, Putin) and a different individual from that group (Russian official, eg) would then give the answer to another individual (Carter Page, eg) who would then transmit the answer (to Manafort, eg)

This may be the way that Manafort, JD Gordon, Page handled the “Memorandum of Understanding” or quid pro quo, of the conspiracy.

If I’m right, then the GOP platform change was a show of good faith about the future quid pro quo arrangement to lift sanctions, and Trump’s  “Russia if you are listening” statement was a signal for the Russians to begin executing the campaign assistance.

This is also the likely way that the whole NRA/Butina/Gordon scheme was coordinated, and THAT is the likely scheme alluded to in Manafort’s notes about RNC fundraising during the Trump Tower meeting.

If I am right, Gordon and Page are next, not Don jr or Stone.

Not discussed by anyone yet is the connection between Flynn and Gordon. Flynn was the person handling the sanctions relief payoff after the election.

I think it’s likely Flynn was a lot more instrumental in the entire conspiracy than has heretofore been revealed.

It would explain why prosecutors keep putting off sentencing Flynn over the initial charges, and why they keep on questioning him as they learn more from other witnesses.

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Thomas says:
September 15, 2018 at 11:51 am
Recently I read everything I could find about the Seth Rich conspiracy theory.
Everyone involved in that cover story to divert attention away from the DNC hack by the GRU has been under investigation by the Special Counsel, including Jerome Corsi.
Jack Burkman (a Trump campaign fundraiser and associate of Rick Gates!) went to extraordinary lengths to push that conspiracy theory.
I watched the press conference Burkman held with a “witness” who by telephone told Wapo, Daily Beast, and many other skeptical journalists that Seth Rich was killed by federal agents connected to Rod Rosenstein and MS13.
Shortly after that, Mueller’s indictment of 12 Russian military officers for the DNC hack completely destroyed the Seth Rich conspiracy theory.
After that, the Rich conspiracy theorists went silent.
It is plain to me that Stone, Hannity, Burkman, Butowski and Fox News (and others!) ALL carried water for this conspiracy theory which was a Russian disinformation operation.
It’s clear to me that Roger Stone was deeply involved. I am waiting with anticipation for Hannity to go down, too.
I think this part of the story won’t materialize until after the election though.

THE OBJECTION THAT MADE MUELLER’S CASE