Michael Cohen has been giving hints that he might flip on Donald Trump. Here’s what that means — and how it might happen.
Aug 3, 2018, 12:40 PM UTC
Jen Kirby is a senior foreign and national security reporter at Vox, where she covers global instability.
Michael Cohen certainly seems like a guy who’s ready to turn on his old boss.
Last week, Cohen’s attorney, Lanny Davis, gave CNN a tape of Donald Trump and Cohen discussing a payment to former Playboy Playmate Karen McDougal in September 2016. The recording confirmed Trump was aware of the payoff at the time.
Just a few days later, sources told CNN that Cohen was willing to tell special counsel Robert Mueller that Trump knew in advance about the 2016 Trump Tower meeting, where Russians offered campaign “dirt” on then-candidate Hillary Clinton. Trump has repeatedly denied knowing about that meeting.
It was a stunning turn for Trump’s former attorney and fixer, who once said he would take a bullet for the president. The revelations came after months of speculation as to whether Cohen — who’s under federal investigation and appears to be in serious legal jeopardy — would “flip” on the president, striking a deal with prosecutors and spilling what he knows about Trump’s business dealings, the campaign’s ties to Russia, hush money payments to porn actress Stormy Daniels or McDougal, or whatever information prosecutors want.
But if this is a potential defendant after a deal, his strategy is a strange one, Daniel Braun, a former federal prosecutor, told Vox. Braun worked in the Justice Department for nearly two decades, first as an assistant US attorney in the Southern District of New York (SDNY), where he handled official corruption and economic crimes, and later at the Department of Justice in Washington, DC. He returned to private practice in 2016.
Braun walked me through the process of flipping and how cooperation plea agreements work, particularly in the Southern District in New York, which traditionally makes defendants plead guilty to all of their crimes. He offered some insight into what Cohen might be facing if he’s trying to flip — though Braun cautioned that when it comes to Cohen, and the Mueller case in general, expect a few twists.
“These incredibly high-profile cases, where the whole kingdom is watching, don’t always follow the same sorts of patterns. Different pressures are put on the system as a result of all the attention,” Braun said, “and so the system doesn’t always operate the same way it would in a more routine set of circumstances.”
This conversation has been edited for length and clarity.
When we talk about “flipping,” what does that actually mean? What’s actually happening?
What it normally means is that somebody who has had some involvement in criminal conduct decides to take responsibility for that conduct and to cooperate with investigators.
It doesn’t always mean that, but it typically does. Sometimes people who are not facing a meaningful threat of prosecution, but who may have other concerns, decide nonetheless that they will cooperate and assist government investigators.
But usually what people mean when they talk about flipping is someone who has real exposure, someone who has engaged in criminal conduct, saying, “I am going to admit that and cooperate with investigators in various ways.” Really, in any way prosecutors would request. And in exchange for that, the hope is they will obtain more lenient treatment at their own sentencing.
I would imagine this is the ultimate goal for a prosecutor: flipping a key witness or party to criminal conduct. There are probably some caveats, but is it fair to say that getting as many people to cooperate is generally a good thing?
It can be too much of a good thing. You don’t want to end up cooperating too many people whom you’re investigating. Typically, prosecutors want to do it to the extent it’s useful to advance the investigation and help their case. But you might approach a line at some point you don’t want to cross, if you sign up so many people that you end up cooperating nearly everyone in the case. That’s not always a concern, but it can be a concern.
It sounds like it’s a bit of a dance. Prosecutors are investigating a case, getting a sense who is involved, what they might know, whose testimony they might want. How does that work from a prosecutor or investigator’s standpoint?
I don’t know if I can give you one single answer that will always be an accurate description. It happens in different ways, depending on the circumstances. Different prosecutors and agents on the government side of the case will form different tactical judgments. Defense lawyers as well.
The conversation can be initiated from either side. Whichever side it comes from, they initially just want to explore whether or not there’s an interest. The prosecutor can reach out to the defense lawyers or — if the defendant or suspect is not represented — to the person themselves and suggest it would be in his or her interest to do this. The defense lawyer can reach out to the government on behalf of the client and say, “My client would like to come in.”
After that initial flirtation, and if the overture is well received, how do you proceed?
It’s in writing invariably, and has to be by DOJ policy. There really shouldn’t be any aspect of the agreement that’s not included in the cooperation plea agreement itself.
But before you get to that stage, there’s a relatively long process of debriefing that happens. Before you get to a cooperation agreement, where the obligations of both the government and the defendant are set forth in writing, you need to have, in most cases, a series of conversations in order for the prosecutor to evaluate the credibility and completeness of the information that this defendant or potential defendant is willing to provide. And that conversation will typically happen through something called a proffer agreement.
The conversation can start in the street, at someone’s home. This can be FBI agents knocking on someone’s door and saying at the outset, “We’re here to talk to you about the following things, and we’re not asking you to say anything, and actually please don’t. We have some things to share with you.”
That is typically an effort to convince someone they are in a great deal of trouble, that they need to listen carefully, and that when they do decide to talk, if they make that decision, they need to do so with an understanding of the gravity of the situation and the importance of being fully truthful.
The agents are going to have information with them, or they may ask the person to come with them to their office. They might play a tape, or show some photos, or share other evidence they’ve obtained during the course of their investigation to persuade the person it’s in their interest to cooperate — and, moreover, that they had better tell the truth because if they don’t, the agents and prosecutors will know.
Once the lawyers are involved, you would expect DOJ to use a proffer agreement. And that governs the dialogue that then takes place between prosecutors and agents on the one hand, and the defendant or prospective defendant on the other. It provides a set of ground rules for those interviews which then take place prior to a decision to enter into a cooperation plea agreement.
I imagine the proffer agreement is kind of what takes you, step by step, to get to the cooperation plea agreement. Is that a fair characterization?
It is. It provides a limited degree of protection to the person answering questions while both sides explore what’s going to happen in the future.
So, in dummy terms: If the cooperation agreement is the goal, the proffer exists to get both the defendant and the prosecutors to that point. Prosecutors want to make sure the defendant’s story checks out, he’s being truthful. But the defendant also gets some protection [in providing] the government information with their case?
Almost entirely correct. The one thing I wouldn’t agree with: What the agreement doesn’t say, ever, is that there’s only a certain amount of information that the government will be seeking. It doesn’t attempt to draw lines between what you are willing to say and what you are not willing to say. The interview itself — and this is covered it the agreement — is a voluntary one at this stage in the process. There’s no compulsion whatsoever, and the agreement makes that clear: You can walk out of here at any time.
But it doesn’t say we’re going to question you about A, B, and C, but not D, E, and F. And it says at the very top, in bold letters in the Southern District of New York: “This is not a cooperation agreement.” Meaning: Don’t get the wrong idea; this is not an agreement under the terms of which you agreed to plead guilty in return for the government taking certain steps on its side.
The proffer agreement starts off by saying this is voluntary. You’re going to sit down and answer questions and provide information so that we can consider that information in making prosecutorial decisions. If you’re not fully truthful, you lose the protection afforded to you under this agreement. But so long as you are fully truthful, we as the government agree that we won’t use your statements directly against you in any case that ultimately we one day might bring.
However, it says what we, as prosecutors, can do is use the information you provide to investigate. If through that investigation we obtain additional evidence that implicates you, that is fully admissible.
Moreover, if you take the stand in your own defense and you say something inconsistent with your proffer, we can use the proffer to cross-examine and contradict you. If your lawyers call other witnesses or make arguments at a future trial that are inconsistent with your proffered statement, we can again use the proffer for impeachment purchases, meaning to contradict that evidence or those arguments.
That’s the heart of it. There are other provisions too. But that’s the basic idea.
So prosecutors are really in the lead, pulling the defendant or witness, and making sure it’s worth the government’s while to enter into a cooperation plea agreement.
Yes, and to make sure what they’re getting is fully truthful, that it will be valuable, and that the person is willing to answer any question posed truthfully as the case moves forward. Because if the person is drawing lines between what he or she is willing to say and not willing to say, that’s the sort of thing that can cause testimony to blow up at trial.
If you’re going to sign a cooperation agreement as a defendant, there’s a real likelihood that you could end up on a witness stand in a courtroom one day. And if you do that, the prosecutor can’t take the risk that your credibility is going to be undermined.
Although I didn’t say that quite right: That’s always a risk. But prosecutors can’t take the chance that you’re going to be up there and suddenly say, “Oh, I’m not going to talk about that.”
How frequently do things fall apart in the proffer stage?
