As the feud between President Donald Trump and his former attorney and all-purpose fixer Michael Cohen continues to escalate publicly on a near-daily basis, it’s worth asking what prosecutors make of all this. It is very unusual for a potential cooperating witness like Cohen to say anything at all publicly, never mind to get into a back-and-forth battle with the president of the United States, complete with innuendo, personal insults, and macho boasting going both ways. If we’re sitting in the prosecutor’s chair on this one, our message to Cohen would be this: We’re interested, but you need to shut up.
During our careers as organized crime prosecutors with the Southern District of New York, the same office investigating Cohen, we dealt with dozens of cooperating witnesses. Many of them were colorful, some of them were dangerous, and all of them took a lot of work. It is vital to understand that cooperation, particularly in the SDNY, is a laborious process. To start, both sides have to be interested. The potential cooperator (here, Cohen) has to be willing to meet with prosecutors, admit all of his criminal conduct —even if that involves dozens of crimes committed over many years — take a guilty plea, and testify as needed. The cooperator also has to give information on all crimes that others committed; cooperators do not get to choose who they do and do not cooperate against.
The prosecution, on the other hand, has to believe that the potential cooperator has valuable information and is, or can become, a credible witness. The benefit to the prosecution is that it now has an insider who can expose the inner workings of a closed organization, while the benefit to somebody like Cohen is that the prosecution will write a letter to the sentencing judge urging a reduction in sentence. In the SDNY, prosecutors do not let any of the cooperator’s crimes slide, and do not guarantee the cooperator any particular sentence.
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If both sides are interested, then the work begins. Typically, the prosecutor and the cooperator will meet in a series of interview sessions, “proffers,” in which the cooperator tells the prosecutor everything he knows. These proffers can take up days or even weeks, particularly with a cooperator who has a lot of how own baggage and a lot of dirt on others, like Cohen, presumably.
The most interesting meeting with a potential cooperator invariably is the first one. That’s when the prosecutor gets to ask all the juiciest questions and see just how much the cooperator can deliver. We used to feel slightly giddy when we’d get a new mob cooperator in for the first round of questioning: how many people did you kill, who else was in on those hits, etc. But before you get to the good stuff, the prosecutor has to lay down some ground rules with the cooperator. And rule number one should be the easiest to follow: shut up. Anything you say you will say only to me and only in this proffer room. You will not talk to anybody about this, including your friends and family. (The notion of talking about potential cooperation publicly, or on Twitter, never even came up because it was unthinkable).
There are of course important reasons for this vow of silence. Every time Cohen or his attorneys say something publicly, it gives Trump and his attorneys fodder to attack him in court, should there ever be a trial.
First, the defense attorneys will pick apart any of Cohen’s public statements for inconsistency with other things he may have said before, or with his trial testimony. As one example, Cohen’s attorney claimed publicly that the recent leak that Trump knew in advance about the infamous June 2016 Trump Tower meeting with Russian emissaries came not from Cohen but rather from the president’s camp. If that turns out to be untrue, Cohen will pay the price on cross-examination.
Second, defense lawyers will attack Cohen for being biased and motivated by personal animus towards the president. The first cross-examination question right out of the box should be, “You dislike my client, don’t you?” It would be tough for Cohen to wriggle out of that one given his (and his attorney’s) recent public declarations against Trump. Third, prosecutors need to keep the testimony of each witness independent from the testimony of every other witness. By going public, Cohen may cloud or color the testimony of other potential witnesses, and, in the more extreme scenario, might enable other witnesses to tailor their testimony to match Cohen’s. These outcomes are problematic for the prosecution and for the pursuit of justice.
It is entirely unclear what Cohen hopes to gain by going public. It’s not good for his cooperation prospects. Some have speculated that he is trying to tempt the SDNY by showing them what he knows. We don’t buy it. It is entirely unnecessary to do that publicly. If Cohen has the goods, then set up a quiet meeting with the SDNY and give them a preview. Cohen’s attorneys know that. Another theory is that Cohen is somehow trying to solicit a pardon from the president. We also don’t see that one, at all. The public feud seems certain only to further alienate the president. And if Cohen has damaging information on Trump, then the best way to cozy up to the pardon-giver is by keeping quiet and waiting for the free pass
Our theory is perhaps the simplest one. We’ve got two guys, Cohen and Trump. They’re both true New Yorkers, they’ve both got enormous egos, they both want the last word, and neither will ever back down from confrontation. It’s a good old-fashioned macho battle. That’s it. The problem is, this spat isn’t helping anybody. Most importantly, it is undermining Cohen’s ability to be a fully effective cooperator. At a certain point, the SDNY might even just walk away if it goes too far. But if Cohen and his attorneys can reign themselves in, then he could be one of the most consequential cooperating witnesses we’ve ever seen.
