On Friday, federal prosecutors from both the U.S. Attorney’s Office for the Southern District of New York and Robert Mueller’s Special Counsel’s Office filed pleadings making sentencing recommendations in the two cases to which former Trump lawyer Michael Cohen has pleaded guilty—tax, bank fraud, and election law violations in New York and one count of lying to Congress brought by Mueller. Taken together, these are remarkable documents, quite unlike anything I can recall seeing in nearly 40 years of practicing and writing about federal sentencing law.
The special counsel’s memo is fairly generous, suggesting that Cohen has provided some information valuable to that office’s inquiries and that his cooperation should be considered in imposing a sentence, specifically by allowing a sentence in the special counsel case to run concurrently to the sentence in the New York case. By contrast, the New York prosecutors’ memo paints a deeply unflattering picture of Cohen as a crooked lawyer, schemer, swindler, tax evader, and eager fixer for “Individual 1,” otherwise known as the current president of the United States. They point out that Cohen has cooperated with the U.S. attorney’s office to only a limited extent and should get no sentencing credit for doing so. They imply that Cohen’s cooperation with the special counsel may be a factor in sentencing the New York case, but end by recommending a “substantial sentence” of imprisonment.
To understand how peculiar these government sentencing pleadings are, it’s important to consider how federal prosecutors customarily deal with cooperating witnesses. First, the sentence for anyone convicted of federal felonies is heavily influenced by the defendant’s sentencing range calculated under the federal sentencing guidelines. Cohens’ guideline range is 51-63 months, essentially 4-5 years. These guidelines are now advisory, but they are still the starting point for any judge’s sentencing decision. In general, a judge will not give a defendant a sentence below the guidelines range based on the defendant’s cooperation with the government unless the government asks the court to do so by filing what is called a “substantial assistance” motion. This is what happened a few days ago with General Michael Flynn.
However, the government never (at least in my experience) makes a “substantial assistance” motion unless the defendant agrees to provide, and then does provide, full cooperation. Indeed, it is rare for the government to suggest that a defendant get any sentencing consideration at all for less than full cooperation. To a federal prosecutor, full cooperation means that the defendant is willing to answer fully, completely, and without reservation any questions about all his own criminal behavior and all the criminal behavior of others of which he is aware. The defendant does not get to pick and choose. Talk about this. Not talk about that. Rat on this co-conspirator. Not rat on that one.
From the government’s perspective, full cooperation is essential, and not merely because prosecutors naturally want all the information they can get. The real issue is that unless the cooperator is willing to talk about everything, the government can never be sure that it is getting the true story. A cooperator who keeps secrets from the government is a potential time bomb in any criminal case because the things he hides from the government have a nasty habit of popping up when the cooperator takes the stand as a witness, destroying both his credibility and that of the government’s case.
As a result, the government generally won’t have any dealings with a defendant who won’t agree to full cooperation. It is only a modest exaggeration to say that the customary response to such a defendant is to throw him out of the office with the parting admonition that he should enjoy his time in the Bureau of Prisons.
But that did not happen here. Instead, Cohen pleaded guilty to two separate sets of serious felony charges without a cooperation agreement, but has nonetheless provided partial cooperation, talking about some subjects, but not others. The picture is of a lifelong con man, trapped, wriggling furiously, but still determined to play both ends against the middle. An incurable hustler, trying to give the government just enough to induce a recommendation of leniency without fully exposing all his own crimes or entirely abandoning his old confederates (notably including “Individual 1”).
And the government’s response is, at least on the surface, very odd. In two ways. The first is the apparent tension between the positions of the New York prosecutors and Mueller. We have the New Yorkers saying to the judge, in effect, “This Cohen guy is a career dirtbag who is holding out on us and his head should be soundly smacked.” Meanwhile, Mueller is saying, “Well, he’s a helpful chap who ought to receive a modest reward.” Of course, neither office is bound to agree with the other, but in a case of this magnitude particularly, one would expect very close cooperation in the preparation of these pleadings.
The second oddity is the timing of the move to sentencing. Ordinarily, sentencings of those who cooperate with the government are delayed until all cooperation, including testimony, is complete. Both sides want that. The government’s leverage over a cooperator lies in the final sentencing recommendation it gives the judge, so it doesn’t want to make a favorable recommendation too early and then have the defendant go south after getting a sentencing benefit. The defendant wants to delay sentencing precisely because he wants the maximum opportunity to demonstrate his candor, repentance, and evidentiary value. But here the government has pushed for sentencing at a point when Cohen has not testified in any public trial or hearing and, notably, while he remains resistant to full disclosure of all he knows.
What’s going on? Here’s my best guess.
Cohen has a lot more he could give. The government knows that. They want to crack him. Moreover, even on the stuff he’s given them so far, he is a less valuable witness so long as he refuses to be fully candid. They are tired of playing his coy little game, and political considerations require speed. So they’ve accelerated sentencing, and set up a classic “good cop – bad cop” squeeze. New York has told the judge to hammer Cohen. By contrast, Mueller looks like a generous friend. Cohen—who like every white collar criminal I’ve ever known is undoubtedly scared silly of going to prison—is facing 4-5 years (and, not improbably, a good deal more if the judge is impatient with his recalcitrance). This crystallizes his choices. Either he quits fiddling around or he goes to the Big House for a long while.
Moreover, an immediate sentencing forces Cohen to make up his mind fast. If he wants to avoid a sentencing in which the Southern District of New York is calling for his head, he has to act within the next few days—his sentencing hearing is scheduled to go ahead on Wednesday. Alternatively, if he gambles and goes ahead with the sentencing and the judge hammers him, there is still one escape hatch. If he decides post-sentencing to open up and cooperate fully, the court could reduce its original sentence, but only if the government makes a special motion to allow that and only if he provides substantial assistance to the government within one year of the original sentence.
In short, the government has just put a ticking clock in front of Michael Cohen. He can’t filibuster anymore. Either he spills his guts or he goes to prison. And the time to decide is right now.
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