A veteran defense lawyer explains how the feds could flip Michael Cohen

The rain is here.
The rain is here.
Image: Reuters/Shannon Stapleton
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Donald Trump and his advisors are increasingly worried that Michael Cohen—Trump’s longtime lawyer, whose home and offices were raided by the FBI last week—will be impelled to cooperate with federal prosecutors.

“They’re going to threaten him with a long prison term and try to turn him into a canary that sings,” Alan Dershowitz, who consulted with Trump and White House staff last week, told Politico.

Cohen has not yet been accused of any crimes, but the raid suggests that prosecutors believe they have overwhelming evidence of a crime or crimes. The former personal injury lawyer and longtime Trump Organization fixer, known for his combative verbal style, raised some eyebrows in the Trump administration when he said the federal agents raiding his office were “extremely professional, courteous and respectful.”

Quartz spoke with a criminal defense attorney who has extensive experience dealing with prosecutors in the Southern District of New York, and in high-profile cases where the government seeks to “flip” a defendant in order to target a more prominent target. The attorney, who has no direct knowledge of the Cohen case, requested anonymity in order to offer a more candid assessment of the situation.

How are the feds going to use what they have to get what they want? Based on what you know from other cases like this.

You think there are other cases like this?

Fair point. Let’s start with: Are prosecutors moving forward based on the evidence they already had on Cohen? Or on what they found in his offices?

I don’t have direct knowledge of this case. But I do know how federal prosecutors work.

I think they had enough for an arrest before they got the warrant, but they don’t know the extent of what it is. Now they’re filling in the blanks and tightening it up.

Because it all originated with Mueller.  He went to the Southern District of New York 1 and said, “Here’s what I have. I don’t have a mandate to prosecute Cohen, but I’ve learned about other crimes committed in SDNY.”

What’s Mueller’s thinking there?

“I’ve got Trump’s guy in my crosshairs. But politically it’s a big problem because it’s outside of my mandate.” So he walks into the Southern District of New York, which has jurisdiction, and says, “Here’s what we have.” The SDNY is headed by [Geoffrey Berman]Trump’s hand-picked replacement for Preet [Bharara] 2.

And in the US Attorney’s manual, they have clear guidelines 3 about what you have to do to get a search warrant, and what you have to do to search a lawyer’s office. You have to have the approval of the US attorney themselves and the criminal division.

To go to the Southern District and get this warrant, you need an unbelievable amount of evidence. It’s a very high bar—not just to search an attorney’s office, but the attorney of the president, and you have to show there’s a legitimate belief that contraband or instrumentalities of the crime will be present. Practically, they would want to explain to the judge there’s a legitimate fear that the evidence might just disappear [with a subpoena]. 4

If Cohen lied on the home equity loan he says he took out to pay Stormy Daniels 5, how damning would that be? And would Trump be protected by attorney-client privilege in that case?

If it is about bank fraud, and you can make the connection to the Stormy Daniels payment, and Trump is complicit, then there would be a crime fraud exception 6 to privilege. But candidly, what I have been seeing in the media makes me wonder if there is any privilege at all, given the nature of the relationship.

If Cohen said “I’m going to take care of this for you,” then Trump is probably a co-conspirator. Or if Trump says “just make her go away.” Or, God forbid, Trump says “We can’t afford this right before the election.” That’s the one thing they didn’t have on John Edwards 7.

I would bet you a significant amount of money the Southern District of New York had way more than they needed to charge Cohen when they conducted the raid. They had him dead to rights before they obtained the warrant.

The warrant application probably said, “These are the crimes we believe Cohen has committed, and we believe the evidence of these crimes is contained there, because we have reason to believe he’s taping this conversations and is keeping the notes and ledgers of these conversations in his office.” Now they’re sifting through what they have to put icing on the cake.

What’s the process from here on out, starting with judge Kimba Wood’s forthcoming ruling?

It’s either going to be a taint team 8 or a special master 9, sifting through the evidence and screening out material that’s protected by attorney-client privilege.

A taint team is a completely separate group of lawyers from the DOJ—if you really wanted to carve them out, you’d get a team from the Eastern District, send the documents over there, and they’d make the determination of what is and is not privileged. Then they’d send the not-privileged stuff back to the Southern District.

If the judge goes with a special master, she will appoint someone like Louis Freeh 10,who would be perfect for this. Let his team of lawyers sort this out. Judge Wood could also pick someone like a retired federal judge, or a big name like Bob Bennett at Hogan Lovells, someone with unlimited resources, who could put 50 lawyers on it and get this done in a week.

How long will it really take?

Let’s say the taint team might get this thing done by July 1, and the special master gets it done Aug. 1. I don’t think it’s really going to make a difference. Then [prosecutors] have still have to fit the seized evidence into what they already had and put their case together.

I would expect they’re ready to do a reverse proffer 11 with Cohen in August. You’re going to want to get this right, because everybody’s watching. August or September, they’ll sit down with Cohen’s criminal lawyer and lay out just how bad it really is.

At this point, is it about the original suspected charges, or could it be anything?

Annnnnything. You get through the door because you’re looking at bank fraud, then you’re like holy shit, this is tax fraud, or money laundering, or FCPA stuff 12. Once the camel’s nose is under the tent, you can’t keep the camel out.

If you’ve got Cohen dead to rights, what do you do next?

Say you’re the SDNY and everything comes back and you confirm that there is an airtight case of bank fraud, that gives them all the bargaining power in the world. You sit down with Cohen’s people and say: “We’re going to indict you on bank fraud, on campaign finance violations, on tax fraud, on wire fraud, and on obstruction of justice or whatever else they found from the search. We are 100% certain of a conviction on bank wire fraud, it’s as clear as the hand in front of your face. I’m definitely going to win on these.”

You make the pitch: “I’ve got you on this stuff. You’re either going to plead on this, or I’m going to indict you.” And Cohen says, “if you’re going to indict me, why should I plead?” And you say, “if you make us indict you and go to trial I’m also going to add the campaign finance and the tax fraud and who knows what else. I won’t add this stuff if you plea, but your plea requires that you debrief on this other thing—POTUS 13.”

There’s stuff prosecutors know you’re gonna get, and stuff that’s a little more iffy, and that’s how the negotiation goes. And the big divide, the big factor—and it’s the same for Manafort 14—is how the sentence is calculated.

2b1.1 is the section of the sentencing guideline that will drive the negotiations. Bank fraud, wire fraud, all of the frauds, the loss tables lay out how the numbers drive the jail time. Over $100,000, over a million, etc.

And what’s the number going to be?

You may think, ok, Stormy Daniels, the bank fraud amount is $130,000. But the fraud could actually be the total value of the house on which the loan was based. If your house is worth $1 million, the fraud could be $1 million. What the government is allowed to use for a loss is so, so unfair. It’s not actual loss, it’s potential loss, the biggest number that it’s touching. The tax fraud, it’s not the $5,000 you cheated on, it’s the $500,000 you filed on.

So they’ll add those things together and then threaten Cohen, “If you are convicted, we’re going to get a restitution order and take every goddamn thing you own: your house, your car, your watch.”

However, if you agree to forfeit $150,000 and plead to bank fraud and cooperate, then you could be looking at any sentence, even probation. That’s cooperation credit, 5k1.1, what they call substantial assistance to the prosecution.

Almost every federal judge in the country will follow a sentencing recommendation on the guidelines and if Cohen is looking at a big number, he is going to go to jail. The only way to get out of that is to get the cooperation credit. I’ve had a guy go from a guideline range of 30 years to a sentence of probation because he pled and cooperated.

So then how would SDNY loop back and connect Cohen’s cooperation to the special counsel investigation?

Let’s say SDNY have Cohen at their mercy: “Look dude, do you want to do 10 plus years, or six months? Be financially crippled, or pay $150,000? Those are your options.” When you come in—remember the movie Goonies, when they grab Chunk and hold his hand over the blender, “Tell us everything”? That’s what it is when you go in and cooperate. You just—blergh, spew everything and let them sort out what they want. Everything you tell, you get credit for.

He can roll over on his neighbor, his accountant, his mistress, anyone that is committing or has committed a federal crime. But of course, what they really want is Trump.

Sometimes there is an intermediate step—an attorney proffer. If Cohen’s lawyer comes in and says, “he can give you X, what are we looking at?” The prosecutor says, “if he can give us X, I think we’re looking at a plea to one count of false statements and—no promises on the sentence, wink wink—and then we’ll see where we are.”

With obstruction, you’re now down from a 20-year to a 5-year offense, and there’s no loss calculation with false statement, it’s just a better deal all around. Look at Michael Flynn 15. He went from FARA 16 and who knows what else (including charges against his son) to one count of false statements. Same for Gates 17. He pled to one conspiracy and one false statement, even after indictment. Both gave themselves a real chance to avoid jail all together.

Now the real genius part, after Cohen comes in and gives it all up.

The SDNY prosecutors say “oh, this is so interesting! This sounds like something that’s within the mandate of Bob Mueller! So crazy! We should call someone on Bob Mueller’s team and tell them we have something they should hear!”

Mueller then has a perfect response to anyone who accuses him of violating his mandate, “Hey, I got a call out of the blue from the SDNY about that case referral I gave them. This Republican Trump appointee called me and said ‘I’ve got a guy in my office who’s profferring, you should hear what he’s got to say.’”

What could anyone on Fox News or in Congress say—that he should hang up the phone?

So this is a diabolical move by Mueller?

Basically, Bob Mueller is playing three-dimensional chess, and Trump is playing tiddlywinks. Mueller is pummeling the shit out of him, and every lawyer on the planet can see it.

Here’s how I know: Every lawyer I know who has been contacted by the White House has represented terrible people in the past, and they all said, “no thanks.” 18

Two reasons: One is the traditional stuff, he’s a terrible client who won’t listen and won’t pay—a disaster combo. The second reason is the stink of it. Their job is not to divine who’s good and who’s bad—defense attorneys ensure that even the most disgusting among us get due process.

But this has other value judgements—no one wants to take a case with all these other headaches and go down in flames in front of the entire world. Be associated with this guy, spend all your time and not get paid, alienate all of your other clients (current and future) and lose dramatically? There is just no upside. Those with the big names already don’t need it and the up and comers don’t want all the risks.

It’s one thing to take a case that’s really tough, we all do that every day. It’s an entirely different thing to take hold of a fucking rock and jump off a ship and sink to the bottom.

Update: Shortly after this interview was published, former New York City Mayor Rudy Giuliani, who was previously the United States Attorney for the Southern District of New York, joined Trump’s legal team. He told the Washington Post: “I’m doing it because I hope we can negotiate an end to this for the good of the country.”

This interview has been edited and condensed for clarity.