Michael Cohen symbolically declared his independence from Donald Trump when he deleted Trump’s name from his twitter profile on July 4. Cohen also telegraphed a desire to flip on Trump when he told George Stephanopoulos that loyalty to his family was his top priority. That’s all well and good on Cohen’s part, but the fact remains that a plea deal is a two way street and there may be compelling considerations for Southern District of New York to hold off on offering anything to Cohen right now. Vanity Fair:
“When all the pundits talk about whether Cohen is going to flip, people leave out the other half of that equation—which is that the Southern District has to want to offer him a deal. It’s not clear to me they would,” says [Dan] Stein, [formerly of S.D.N.Y. criminal division] who left the office in November 2016. “Typically you only want to sign someone up as a cooperator if there’s a reasonable prospect of using them in a case against a bigger target. Here, where the target appears to be the president, who is potentially immune from prosecution, where are you going to have Cohen testify? My instinct is the Southern District would be uncomfortable with making a deal with Cohen and then just saying to Robert Mueller, ‘Here are the proffer notes, do with them as you will.’”
Another issue is the fact that Cohen doesn’t know when to shut up.
“If I’m the prosecutor on the case, I’m appalled by all the talking Cohen is doing,” says Bennett Capers, a former S.D.N.Y. prosecutor. “Because every time he opens his mouth, it makes the case a little bit harder. Every time he speaks he jeopardizes his usefulness down the line as a witness, because he might say something contradictory.”
Renato Mariotti, a former federal prosecutor in Chicago, has seen defense lawyers exploit smaller holes than the ones Cohen is gabbing open. “If he gets on the witness stand, he’s going to get impeached on the prior statements: ‘Now you’re saying that Trump was involved in the Stormy Daniels thing. But you said the opposite on this TV show.’ Yeah, that’s gonna be a problem.”
The big issue to be considered is simply, where should Cohen testify, considering that testifying for S.D.N.Y. is one thing and testifying for Mueller is something quite different. But that isn’t to say that the two things can’t be coordinated.
Perhaps; the S.D.N.Y. is indeed famous, or infamous, for being protective of its cases. But proffers and plea deals are sometimes shared by jurisdictions. “True, the Southern District is not going to prosecute Trump for Russian collusion, because that’s the special counsel’s turf,” says Mimi Rocah, another former S.D.N.Y. prosecutor. “But there are certainly a world of crimes that Southern could investigate and prosecute apart from Mueller—say, if Cohen has information about fraud or real-estate crimes before Trump was a candidate. It takes close coordination to share what a cooperating witness proffers, but if there’s a dynamic where it would happen, this would seem to be it—given that what’s at stake is the criminality or non-criminality of the president of the United States.”
There’s no question but that Cohen knowing where all the bodies are buried is critical information to obtain, but how to go about it must be determined. All the eyes have to be dotted and the tees crossed. Mueller has handled everything with kid gloves up to this point and that’s not going to change. Also bear in mind that Michael Avenatti said that Cohen would be arrested or indicted within ninety days and that was April 16, so there’s 11 days left on that deadline. So far Avenatti has called the shots correctly. This case is only starting to get interesting.
