The Reason Prosecutors Hammered Michael Cohen Despite His Cooperation With Robert Mueller

https://slate.com/news-and-politics/2018/12/michael-cohens-cooperation-robert-mueller-sentencing.html

The Reason Prosecutors Hammered Michael Cohen Despite His Cooperation With Robert Mueller
By Frank Bowman
Dec 08, 20181:15 PM

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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.