Tuesday, August 21, 2018

The Michael Cohen Information and Plea - Some Comments (8/21/18)

I offer a few comments on the Michael Cohen plea that is much in the news.  The USAO SDNY press release is here.  The criminal information is linked on the press release.  The press release is quite detailed, as perhaps the defendant involved and the circumstances require.

The criminal information and resulting plea is to 8 counts as follows (as corrected 8/22/18 2:40pm):

Convicted Max.
Code Section Description Mos. Counts Mos.
26 7201 Tax Evasion 60 5 300
18 1014 False Statements to a Bank 30 1 30
52 30118(a) and 30109(d)(1)(A) Causing Unlawful Corp. Contribution 60 1 60
52 30118(a) and 30109(d) (1) (A) Excessive Campaign Contr. 60 1 60
Total 8 450
I omit from the Counts of Conviction aider and abettor or causer liability 
under 18 U.S.C. § 2 (which just makes the person a principal)

Of course, all the buzz is about the relationship of the conduct charged in the counts and Trump.  Cohen was Trump's personal lawyer, I think until fairly recently.  I won't go into the political aspects of that.  Rather, I will go into what this may mean in terms of Cohen's providing information to the Special Counsel.  Basically, this involves him providing or being required to provide information about Trump.

Cohen made a straight up plea to the criminal information.  The prosecutor promised him nothing in return.  That is not the way pleas are normally done in tax and other white collar crime cases of which I am familiar. Normally, once the prosecutor has gotten the proverbial pound of flesh against the particular defendant, the prosecutor will agree not to prosecute other potential charges.  I am certain that there are a number of other charges that the prosecutor could have made.  The prosecutor has not agreed to forgo such additional criminal charges.  Now, in order to induce the prosecutor to forgo such other indictments, the defendant usually has to offer to cooperate against the bigger fish, which seems to be floating around this case.  Cohen did not agree to such cooperation in this case.

Does that mean that Cohen will not have to give testimony about Trump?  No.  Because there is the possibility of other charges, Cohen can certainly plead the Fifth Amendment privilege not to testify if called by the Special Counsel.  But, since the federal government has gotten a substantial conviction by plea thus, presumably, satisfying its prosecution angst against Cohen, the Special Counsel can obtain immunity for Cohen and force him to testify.  Of course, if Cohen then refuses to testify, the Court can send him to jail for contempt which, I suspect, would be an add on on the front end or back end to the sentence Cohen will draw for the counts of conviction to which he just pled.

And, of course, if Trump were to pardon Cohen, the same analysis would apply.  Cohen then has no fear of prosecution and cannot properly invoke a Fifth Amendment privilege. (I suspect that the Special Counsel would, just for caution, give him immunity anyway to further confirm that Cohen has no Fifth Amendment privilege he can assert.)

Of course, if Trump does not pardon Cohen, Cohen will have a practical incentive to cooperate with the Special Counsel.  Although the Government has made no advance commitment to seeking a downward departure or variance in sentencing for cooperation, it almost certainly would do so if Cohen cooperates and makes a substantial contribution to landing the big fish (whether by report to Congress or, perhaps eventually, to by indictment of Trump).

The point of all this is that, although Cohen has not yet agreed formally to cooperate, there are some real practical reasons for him to do so and he may have to testify whether he wants to or not.

These are interesting times.

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