What would you do if you got into legal trouble, hired the best attorney money could buy, and he then testified against you in the grand jury empaneled to indict you? It's crazy, right? Illegal? Unethical? Can't happen here? But that's exactly what happened last week to Paul Manafort.
Believe me, I'm among the last people in America who would want to defend Paul Manafort. I'm one of those who believe that Manafort sought to collude with elements of the Russian government to strengthen Trump and weaken Clinton, with the result being a concurrent weakening of our democracy. Shame on him. He ought to be prosecuted.
The United States, however, is supposed to be a country of laws. We like to tell other countries around the world that we're a shining beacon of civil liberties and civil rights. Lady Justice wears a blindfold, after all.
But that's nonsense. The Washington Post reported last week that special counsel Robert Mueller, in a little-noticed court filing, asked the U.S. District Court for the District of Columbia to order one of Manafort's former attorneys to testify against him in the grand jury. Judge Beryl Howell said in her opinion that while almost all information is protected by attorney-client privilege, there are exceptions to that privilege, including instances where a suspect may have lied to his or her attorney, causing the attorney to unwittingly lie to the government. It's called the "crime-fraud exception."
I can understand that. But that's not exactly what happened in the Manafort case. Mueller and his investigators were curious whether Manafort had lied to the government through his attorney, but they had no proof that he had done so. The only way to get proof was to subpoena the attorney. This is normally illegal. Remember, there is an expectation of privacy between an attorney and his or her client. The judge, however, declared in her ruling that "This is a matter of national importance," thus justifying invocation of the exception, even though this case is not about life and death, espionage, treason, or the like.
Manafort's attorney, Melissa Laurenza, said that she would testify only with the consent of her client, consent that Manafort did not grant. But the judge ordered her to testify and permitted Mueller's team to ask seven of the eight questions they had originally proposed. The questions were then redacted from the court records.
In the end, of course, Manafort was indicted on a dozen different felony counts. It's unclear whether any of those counts rested on what the attorney told the grand jury. Either way, though, that testimony should never have taken place.
I'll admit to you that I'm biased on this issue. Nearly six years ago I was charged with five felonies after blowing the whistle on the CIA's illegal, immoral, and unethical torture program. The feds couldn't get me specifically for doing that, so they did what they always do: they did a deep dive into my background, began listening to my phone calls, intercepted my email messages, and put surveillance teams on me to follow me everywhere I went. Three years later, they finally came up with one count of violating the Intelligence Identities Protection Act of 1981, one count of making a false statement, and, most importantly, three counts of espionage.
Four of these charges were ridiculous on their face. I hadn't made any false statement to anybody and I certainly hadn't committed espionage. All four of those charges eventually were dismissed. But when I was first arrested, when I was crazy with stress, suicidal, and panicking, I may have or could have said something to my attorneys that may have or could have implicated me in a crime. I don't know. I don't remember. But what would have happened, then, if those same attorneys to whom I had opened my heart had been compelled to testify against me? I would still be in prison. And I likely would have ended up dying there.
I understand that Mueller wants to make a case. What good is a special counsel if he does an investigation that lasts for months or years and costs millions of dollars and he then he doesn't indict anybody? I get it. But in the United States we have a presumption of innocence. We also have attorney-client privilege. We live in a society where we at least used to believe that it was better for a guilty man to go free than for an innocent one to go to prison. It seems that that has changed. And we're a lesser country for it.
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