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

By Frank Bowman, Slate

09 December 18

 

n 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.

Attorney General Nominee William Barr Will Fit Right In With Trump's Immigration Agenda

By Dara Lind, Vox

09 December 18

As George H.W. Bush’s attorney general, Barr built border barriers and turned away asylum seekers.

resident Trump’s new nominee for attorney general, William Barr, was a Republican immigration hawk back before it was popular.

As George H.W. Bush’s attorney general in late 1991 and 1992 — as the president was fighting off a primary challenge from the populist right in the form of Pat Buchanan — Barr pushed an aggressive “law and order” agenda on both immigration and street crime. His hawkishness surprised a lot of observers at the time, but it fits right in with the Trump administration — and, specifically, with a Justice Department that (thanks to former Attorney General Jeff Sessions) has been the nerve center for incubating new ideas in immigration crackdowns.

The DOJ Barr is taking over isn’t the same one he led in 1992 — he no longer has control of the Immigration and Naturalization Service — and the realities of immigration are completely different as well. And some of Barr’s rhetoric about immigration from that time — like blaming it in part for the LA riots of 1992 after the acquittal of officers involved in the beating of Rodney King — sounds about as racist as some of the things Trump has said about immigrant rapists and murderers.

But in some ways, Trump’s obsessions with physical border barriers and immigrant street gangs are better suited to 1992 than to 2018, anyway. So Barr hardly has to update his agenda to fit right in.

Barr’s AG legacy: border barriers, more agents, and a focus on immigrant crime

Because Barr came into office at the end of 1991, some observers expected him to be a “caretaker” who’d keep a low profile. He was anything but.

Barr’s primary focus was on domestic law enforcement, particularly street crime — this was, after all, during the peak of the crime wave of the late 20th century. But he was also extremely concerned about the influx of unauthorized immigrants into the US — largely Mexican immigrants looking for work — that ultimately grew the unauthorized population to 2 million to 4 million by the time Barr and Bush left office in 1993.

In retrospect, of course, this seems extremely low; since the mid-2000s, the unauthorized population has consistently held at 11 million to 12 million, thanks to the immigration wave of the 1990s and 2000s and the passage of a 1996 law that made it much more difficult for unauthorized immigrants to legalize. But at the time, it was seen as an alarming failure of border security.

Barr rolled out a multimillion-dollar plan to beef up security in the San Diego/Tijuana area where crossings were then concentrated. One component of that plan: building a steel fence with the assistance of the Department of Defense. (Migrants were unimpressed; a few days after Barr gave a speech in San Diego announcing the new funding, a group of migrants had dug a large hole under the steel fence.) The San Diego/Tijuana area started a border-wide trend of building physical barriers to prevent crossings in populated areas — funneling immigrants toward the Arizona desert and, more recently, gang-controlled crossings in the Rio Grande Valley.

At the same time, he shared Trump’s concern with immigrants in the US committing violent crime. Barr hired more than 100 Immigration and Naturalization Service investigators to go after “criminal aliens involved in street gangs.” He was much less impressed with the INS officials who were responsible for facilitating legal immigration; after leaving office in 1993, he complained to David Gergen (then of US News) that his attempts to overhaul the agency had been stymied, and endorsed things like placing agents at foreign airports to check travel documents (since implemented) and “summary deportation proceedings to weed out patently phony claims for asylum.”

During a June 1992 interview with the LA Times, in the aftermath of the riots after officers were acquitted in the Rodney King beating, Barr, unsolicited, blamed immigration as one cause of the unrest: “The problem of immigration enforcement — making sure we have a fair set of rules and then enforce them — I think that’s certainly relevant to the problems we’re seeing in Los Angeles.” (Relations between LA’s black and immigrant communities, particularly its Korean community, are definitely part of the story of the LA riots, but Barr’s stance that insufficient immigration enforcement was to blame wasn’t widely shared.)

The keep-’em-out strategy Trump is pushing on asylum seekers rests on Barr’s precedent

The most urgent problem facing Barr, as far as Trump’s concerned, is the continued entry of families at the US-Mexico border — and the fact that if they seek asylum, the US can’t simply refuse to allow them to enter. The administration is working with the Mexican government on an agreement that would force asylum seekers to wait in Mexico while their applications were processed, but Trump has repeatedly expressed a willingness (even an eagerness) to shut down the border to them entirely.

Those proposals rest on questionable legal ground at best. But the best precedent they have is a policy from Barr’s attorney general tenure.

In 1991, a coup plunged Haiti into chaos, and Haitians started fleeing by boat to the US en masse, with 30,000 attempting to come by May 1992. The Bush administration mobilized the Coast Guard to intercept them; about a third expressed a desire to seek asylum, while the Bush administration fought a court case challenging its authority to deport the rest.

Then in May 1992, Bush signed an executive order known as the “Kennebunkport Order” — decreeing that any Haitian intercepted by the Coast Guard, even ones who wished to seek asylum, should be returned directly to Haiti. (In theory, Haitians were instead allowed to seek asylum at the US Embassy, but human rights lawyers at the time pointed out that would essentially out them as political dissidents and make them targets of the new Haitian government.) The policy was challenged as a violation of the legal obligation of non-refoulement — the principle that a country can’t return people to a place where they’d be at risk of persecution.

The Haiti policy wasn’t in effect when Barr (and Bush) left office — it was put on hold by an appeals court, much to Barr’s chagrin. But the Clinton administration was willing to defend it at the Supreme Court, and in 1993 the Supreme Court ruled the Haiti policy was legal — because the obligation in US law not to return people to a place where they’d be persecuted didn’t apply in international waters, and the International Refugee Convention, which held the US to the same obligation, didn’t have legal force.

The Supreme Court’s decision in the Haiti case has been raised as an example of the executive authority Trump used with his travel bans (Barr praised even the earliest, most aggressive version of the travel ban in February 2017) and with the asylum ban his administration is currently fighting to reinstitute. And it might be an important precedent as the US contemplates further aggressive moves on asylum, like the Remain in Mexico policy.

Barr will fit right in with the legally aggressive culture at a Sessions-built DOJ

Barr doesn’t have Jeff Sessions’s intimate understanding of the current structure of immigration policy. But he doesn’t necessarily have to. Both with and without Sessions, the DOJ has been a force for legally aggressive tactics in the service of immigration hawkishness.

Under Sessions, the DOJ took the lead in implementing a “zero tolerance” prosecution policy, which resulted in the widespread separation of families at the US-Mexico border in late spring. The DOJ was instrumental in developing and pushing forward the asylum ban, which was developed quickly — with little input from the Department of Homeland Security — in late October and early November.

The post-Sessions DOJ has continued Sessions’s interest in reviewing and overturning precedents in immigration courts, especially when it comes to asylum eligibility. And according to BuzzFeed’s Hamed Aleaziz, they’re currently pushing for a “remain in Mexico” policy that wouldn’t even screen asylum seekers for a fear of persecution in Mexico — over the objections of DHS officials, who want to keep people who have reason to fear persecution in Mexico in detention in the US.

Barr may fit in well at that DOJ — one review of his tenure under Bush praised him for his aggressiveness and new ideas, while featuring some officials worrying that he was moving too fast and promising results he couldn’t deliver.

Those are generally problems for policymakers. They do not appear to be problems for this administration. Whether or not Trump knows it, he’s picked an attorney general who knows how to run the kind of immigration policy Trump likes: one that cracks down first and asks questions later.