On December 12, 2018, Michael Cohen, President Trump’s former lawyer and “fixer,” was sentenced in New York federal court to a three-year prison term after pleading guilty to a variety of crimes in two cases. Cohen received this significant sentence although he had cooperated — to a degree ─ in two separate federal criminal investigations: the investigation of Russian interference in the 2016 Presidential election by Special Counsel Robert Mueller, and an investigation of tax fraud, bank fraud and election law violations by the U.S. Attorney’s Office for the Southern District of New York (“SDNY”) in Manhattan.
Cohen’s attorneys argued that Cohen had only foregone the traditional concept of full cooperation because it would have resulted in investigations and trials that would have delayed the final resolution of his case, and Cohen wanted to accept responsibility for his crimes and bear the punishment as soon as possible. Accordingly, they argued, Cohen should be given probation. But that didn’t happen. So, what went wrong?
The Cooperation Issue
The issues in Cohen’s case were that he had neither entered into a cooperation agreement with the SDNY prosecutors nor provided full cooperation. When an individual who is being investigated by federal prosecutors decides to cooperate, they inevitably sign a cooperation agreement. Cooperation agreements require, among other things, that the individual admits to every crime he or she has committed, including crimes that the government does not know about, and discuss the participation of others in these crimes.
Cohen, however, refused to provide complete cooperation. Rather, as noted in a December 9, 2018, New York Times article, Cohen attempted to provide selective cooperation, “a brazen and risky legal strategy: offer enough information that it might prompt prosecutors to ask a judge for leniency for him – but nothing more about his or others’ activities.” The SDNY prosecutors weren’t buying it. In their sentencing memo they noted that, because Cohen did not provide full and complete cooperation, the result was that the prosecutors could not “fully vet his criminal history and reliability,” which, in turn, “impact[ed] his utility as a witness.” As aptly noted in a December 8, 2018 article on the then-upcoming Cohen sentencing in Slate,
“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.”
Cohen’s SDNY prosecutors, therefore, refused to provide a “substantial assistance” cooperation motion, known as a “5K motion,” to the court on Cohen’s behalf, and instead asked for a “substantial” sentence of about 4 years (48 months), only a modest reduction below Cohen’s sentencing range in the SDNY case of 51-63 months under the federal sentencing guidelines. Typically, a judge will not give a defendant a sentence below the guidelines’ range unless the government asks the judge to do so by means of a 5K motion.
Mueller’s office indicated in a letter to the court that Cohen had provided significant cooperation in Mueller’s investigation not only about Cohen’s own conduct ─ lying to Congress over a proposed Trump Tower Moscow project ─ but also that of others “on core topics under investigation,” and asked for some leniency for Cohen at sentencing. (In the Mueller case, Cohen received a two-month sentence to be served concurrently with the three-year sentence in the SDNY case.)
The SDNY prosecutors noted the following in their sentencing memo:
• Cohen met twice with the prosecutors after his August 21 guilty plea, was “forthright and credible,” and had potentially “useful information about matters relating to ongoing investigations being carried out by this office”;
• Cohen, however, “specifically declined to be debriefed on other uncharged criminal conduct, if any, in his past,” and “declined to meet with the office about other areas of investigative interest”;
• “In order to successfully cooperate with this office, witnesses must undergo full debriefings that encompass their entire criminal history, as well as any and all information they possess about crimes committed by both themselves and others”; and
• This process of full cooperation allows prosecutors to “fully assess the candor, culpability, and complications attendant to any potential cooperator, and results in cooperating witnesses who, having accepted full responsibility for any and all misconduct, are credible to law enforcement and, hopefully, to judges and juries.”
Because Cohen failed to completely cooperate, according to the SDNY prosecutors, “Cohen’s efforts . . . fell well short of cooperation.”
Cohen still has one possible way to have his sentence reduced. If he now begins to fully cooperate and provides “substantial assistance,” the court could reduce the three-year sentence, but only if the SDNY prosecutors file a motion seeking the reduction within one year of the original sentencing date. Although Cohen pledged to continue his cooperation after his sentencing, the judge explained at sentencing that this offer was “not a matter this court can consider now.”
As the Cohen matter illustrates, a cooperator must be “all in”, that is, he or she must sign a cooperation agreement, and cooperate truthfully and honestly, with no caveats or conditions, to the fullest extent possible. Cohen did not do so, and as a result faced the ire of the SDNY prosecutors, the wrath of the judge, and ultimately received a much harsher sentence than the one he most likely would have received had he fully cooperated. In the end, a delay in sentencing certainly seems like a small price to pay for a significantly reduced sentence.
The decision to cooperate or not is a difficult one. An experienced white collar criminal defense lawyer should be retained to help navigate this often highly pressured (and sometimes public) situation, and determine the best course of action to take. As the Cohen case demonstrates, however, counsel can only do so much without the client’s willingness to fully and completely cooperate.
For more information on this issue and related matters, contact:
David M. Rosenfield at [email protected] or 212-592-1513
This article is the first in a series of articles on white-collar defense and investigations.
David M. Rosenfield, a member of the Litigation Department of the New York law firm of Herrick, Feinstein LLP, concentrates his practice in white-collar criminal defense, corporate internal investigations, and securities regulation. He represents and defends individuals and corporations before federal agencies such as U.S. Attorneys’ Offices, the Department of Justice, and the SEC; state agencies such as the New York State Attorney General’s Office and the New Jersey Division of Criminal Justice; and self-regulatory agencies, such as the Financial Industry Regulatory Authority.