Absolutely nothing wrong with Manafort’s lawyers talking to Trump’s lawyers

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.{mosads}

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.