By Frank Bowman
On Saturday, I wrote a piece for Slate analyzing some notable peculiarities in the two sentencing memoranda filed regarding former Trump lawyer Michael Coehn by the U.S. Attorney’s Office for the Southern District of New and Robert Mueller’s Special Counsel’s Office. The link is here.
I note that the prosecutors have treated Cohen quite differently than one would treat an ordinary cooperating witness. And I speculate that the decision to ask for a quick sentencing and to file two sentencing memos with rather different takes on Cohen’s usefulness and the credit he should get for cooperation may be a coordinated strategy to pressure Cohen to give full cooperation on everything he knows, rather than the partial cooperation he’s apparently given to date.
I note in the Slate piece that the Cohen situation is quite odd in comparison with ordinary prosecution practice. What I find odd are three points, only two of which I really touched in the Slate piece and not completely there. The first is the fact that SDNY and Mueller are employing Cohen as a “cooperator” at all, given that he hasn’t signed a cooperation agreement and won’t agree to be fully debriefed. I’m sure prosecutors have done this from time to time, but I can’t recall doing that or seeing it done. As I indicated in Slate, in any case I ever ran, my response to that kind of half-baked cooperation would have been to show the guy the door. A half-cooperator just can’t be trusted and is a ticking bomb in your case.
Of course, I can see why, in this case, SDNY and Mueller would agree to debrief Cohen on whatever he’d give, while giving him no promises. The importance of the case and Cohen’s position vis-a-vis Mr. Trump would make even partial information irresistible. (And by the way, I don’t recall — though certainly it’s probably been done — ever encountering a defense lawyer who’d let his client do multiple debriefings without a cooperation agreement. Leaving all else aside, everything the guy says is arguably fair game for both sentencing enhancements under the guidelines and further charges.)
The second oddity is the fact, which I didn’t specify in Slate, of effectively letting the SDNY memo drive the sentencing train. Of course, the SDNY charges are more serious from a criminal law point of view and carry longer sentences, so that gives SDNY more leverage over the outcome. But in this case, it’s Cohen’s relationship to the Mueller investigation that obviously matters. In SDNY, Cohen is just a run-of-the-mill white collar schnook. Whether he does or doesn’t cooperate fully with respect to his own financial misdeeds is really unimportant. What matters is what he can say about Mr. Trump, Trump’s business associates, and family. I find it difficult to believe that SDNY would take a sentencing position based purely, or even primarily, on their views about Cohen’s cooperation in relation to his personal crimes. Granted, SDNY has a reputation of having a high opinion of its own importance, but I don’t think even they are that parochial. One has to think that the Mueller and SDNY positions have been coordinated with Mueller’s views being paramount. Thus, the question is to what end. My Slate piece is simply a speculation about what that end might be.
The third, and to me most outstanding, oddity is the timing of the sentencing (for both Cohen and Flynn). I don’t recall ever seeking an immediate sentencing for a cooperator before they have completed their cooperation, including all testimony. In any ordinary situation, and for the reasons I describe in Slate, it makes no sense. There has to be a tactical reason for doing this. The best explanation I can come up with for Cohen without knowing the inside scoop is the one I put in Slate.
Nonetheless, there are other possibilities. One is that the three sentencing positions taken this week by Mueller, et al — as to Cohen, Flynn, and Manafort — are intended to be seen together as a signal to other potential cooperators. The signal would be: (1) you cooperate fully, you get no prison (Flynn); (2) you cooperate, but hedge, you go to prison with only a very modest reduction (Cohen); (3) you screw with us, we’ll put you away for life (Manafort). But if this is what they’re doing, who is the intended recipient of the signal?
A final possible explanation of the odd timing of the Cohen and Flynn sentencings is that Mueller doesn’t view the endpoint of this investigation as a trial in which Cohen and Flynn will testify. Perhaps his focus is a report about the activities of the president. If that’s the case, then ordinary practices regarding cooperators might be altered. Presumably, Cohen has testified before a grand jury under oath and had his factual claims locked in so that any later material change during, for example, a congressional hearing in which he testified under oath would subject him to an additional charge of perjury. And for Mueller, that may be good enough.
We shall see….
BTW, the reflections above are in part a response to a very kind and informative email I received from former federal prosecutor Julie Werner-Simon. I reproduce it with my thanks below:
Dear FB: In response to your piece this weekend in Slate re: Cohen’s cooperation, I, as former lifer-federal prosecutor (in white collar and organized crime), have these clarifications
to your point about the “odd”-ness in two prosecution teams having different “sentencing-takes” on the same defendant who is “cooperating” in multiple federal investigations.
1. What happened with Michael Cohen happened in multiple cases I worked as a federal prosecutor. The cooperating defendant (who was providing information to me) gave full and complete information and assisted in my investigation of other crimes and other defendants. That same defendant “came in late” and provided little to the other team’s case.
2. Our respective sentencing memoranda reflected the different “takes.” What the other prosecution team was not permitted to do was “devalue” my team’s assessment of the cooperator. The coordination in that case was akin to “driving a clutch” and both teams had to make sure the car did not stall out. That we had different takes was not odd; how we orchestrated/presented the different takes was what required precision and finesse – as the government is required to ultimately speak in one voice vis-a-vis a defendant.
3. With respect to Cohen “giving cooperation” but not being deemed by the federal prosecutors as a Sentencing Guideline “5K1.1 cooperator” is addressed in an interview I gave Friday eve to Millennial Politics. Here is the link for your review. 7 Takeaways From The Cohen Sentencing Memos | Millennial Politics
I thank you for your reporting which is based on experience “in the trenches.” For me, it is essential that people who have held the job, conducted investigations and who understand the U.S.C. (the United States Code) as well as rules of evidence (Fed. R. Evid.) and trial practice – – actually write about it.
· Julie A. Werner-Simon
· Former Federal Prosecutor, 1986 – 2015, Senior Litigation Counsel, Major Frauds Section U.S. Attorney’s Office, Los Angeles, as well as Deputy Chief, Organized Crime Strike Force
· California Bar License 141630
· Pennsylvania Bar License 37844
· Post J.D. Fellow, Constitutional Studies, Southwestern Law (2017-19)