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December 8, 2017

Here is an exposition and analysis of some of this week’s national security-related threads authored by Just Security Editorial Board member and former federal prosecutor Renato Mariotti.

CNN Report that Trump, Trump Jr., Trump Org. Received WikiLeaks Docs

Mariotti comments on the CNN report that Trump, Trump Jr., and others within the Trump Organization received an email in Sept. 2016 offering a way to access hacked WikiLeaks documents. Trump Jr.’s lawyer told CNN that he did not remember the email and took no action on it, but Mariotti notes that Mueller’s team should be able to determine whether anyone acted on that email.

However, acting on a email to provide hacked documents is not enough to establish that Trump Jr. or anyone else in the campaign committed a criminal act. The Mueller investigation would need to prove that any person who opened and used the hacked documents knew that they were stolen. Thus, these reports could only take the Mueller team partly along the path to determining whether that type of offense was committed. (The events may also be relevant for other questions such as any coordination between the Trump campaign, Wikileaks, and the Russians.)

 

Trump Jr. Refuses to Testify as to Conversations Between Him and Trump, Citing Attorney-Client Privilege

In this thread, Mariotti analyzes Donald Trump Jr.’s refusal to provide details on conversations between himself and President Trump in testimony before the House Intel Committee. The conversations occurred when news broke of Trump Jr’s meeting with Russians in Trump Tower during the 2016 campaign. Trump Jr. cited the presence of an attorney in the conversations and attorney-client privilege as justification for refusing to answer congressional questions.

Mariotti notes that having one person’s attorney present in a conversation between two people does not automatically create attorney-client privilege. In fact, the very presence of a third party in a conversation between a client and his or her lawyer waives the privilege as a general rule. Only some courts, not all, have ruled that there is an exception to that waiver where the third party is a caretaker of the client, for example when a child takes care of an elderly parent, which is not the case here.

Weakening Trump Jr.’s argument further, as Mariotti says, is that the legal advice either of Trump or Trump Jr.’s lawyers on the Russia investigation would likely implicate the other person. That strengthens the argument that privilege would have been waived by the presence of the third party, because a third party’s presence for a legal conversation that could negatively implicate them suggests that the attorney and his client did not intend to keep the conversation confidential.

Finally, however, Mariotti concludes that because Trump Jr. withheld information from congressional investigators, and not a court, which could have held Trump Jr. in contempt for failing to produce such information, it is up to legislators to hold Trump Jr. accountable and obtain that information. For a deep dive on this topic, read Just Security‘s Andy Wright, “Why Don Jr.’s Attorney-Client Privilege Claim Is Dubious.”

Legal Significance of Reports that Flynn and Nuclear Deal for Former Business Partners

Mariotti analyzes a whistleblower’s allegation that, within 11 minutes of Trump’s inauguration, Michael Flynn texted a former business partner to move forward with a project to work with Russia to build nuclear reactors in the Arab World — their project was “good to go,” Flynn texted. The whistleblower further claimed that the business partner told him that Flynn was making sure that Russia sanctions would be “ripped up” as one of the administration’s first actions.

First, Mariotti notes that this is a corrupt act, even if the allegations do not show enough facts to allow Flynn to be prosecuted for bribery. A theft of honest services law is defined in 18 U.S.C. 1346, as exchanging an “official act” for something of personal value. Here, a promise to “rip up sanctions” would likely constitute an official act. Then, a prosecutor would need to probe whether Flynn received a thing of value in exchange for this promise, which we don’t have any evidence of from these allegations. Depending on the facts, it could still be an ethically corrupt act for Flynn to promise to benefit former business partners, regardless of whether it could be prosecuted under bribery law as part of a quid pro quo.

Second, the mere fact that Flynn allegedly brought up that Trump wanted to end Russia sanctions and made it a top priority is also important, in Mariotti’s view. It suggests that there could be other reasons why the White House wanted to end Russia sanctions so soon, which could be an important line of inquiry for Mueller’s investigation–providing either exculpatory or incriminating information.

Trump Jr.’s Statement that Hope Hicks Worked with Him to Craft Statement on Trump Tower Meeting

Here, Mariotti notes that Trump Jr.’s statement that Hope Hicks, rather than his father, helped him craft the misleading statement about his meeting with a Russian lawyer at Trump Tower in July 2016 does not help either Trump or Trump Jr. from a legal perspective.

Mueller is likely to care about Hicks’ communications in any case, given that she communicates with Trump so closely, and particularly with respect to the Trump Tower meeting, even if Trump Jr.’s claim is true. Mueller would want to know what Trump told Hicks about the meeting and about whether Trump had a role in crafting the statement nevertheless. She would likely be a key witness as to Trump and Trump Jr.’s statements.

Flynn’s Plea Deal (Part II)

Here, Mariotti notes that under the Flynn plea deal, the federal sentencing guidelines only factored in conduct related to his lying to the FBI charge, and not any other criminal conduct related to his lobbying, such as failing to accurately disclose his lobbying activities on his Foreign Agents Registration Act (FARA) filings. Therefore, Flynn is only estimated to face a sentence of zero to six months in prison under the guidelines.

Mariotti concludes that because this is such a light potential sentence given Flynn’s broad criminal exposure, and because Flynn flipped suggesting the case against him was strong, Flynn must be helping the Mueller investigation bring charges against others.

Flynn Plea Deal: What Does it Mean? (Part I)

In this thread, Mariotti notes that while Flynn was under investigation for a wide variety of crimes, his plea deal includes only the lying to the FBI charge. This is unlike Manafort’s indictment, which included multiple crimes. Because these charges were not as severe, the Mueller investigation was able to issue, and the defense agreed to, a “criminal information,” which is a charging document that does not require the approval of a grand jury, like the grand jury indictment in Manafort’s case. Such indictments are more often for serious crimes.

The limited charges cap the amount of time Flynn might serve in jail at five years, even if a judge wanted to give him more time. Ultimately, however, Mariotti believes Flynn is unlikely to be charged with additional crimes if he cooperates with the Mueller investigation and provides useful information. That would mean Mueller would be providing Flynn with a substantial benefit of reduced jail time, and Flynn would need to provide “substantial assistance” to the Mueller investigation. It is unlikely that Flynn would get such a beneficial plea deal if he were only providing information about lesser figures or figures who had already been indicted or pleaded.

Finally, Mariotti notes that the extent of Flynn’s sentence won’t be revealed until all of his cooperation with Mueller is finished — which means we won’t know the exact details of what Flynn provided for a long time.

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