President Trump said this in response to the plea bargain of his former lawyer, Michael Cohen. However, Michael Cohen did not, in fact, “flip.” Cohen’s plea deal is not conditioned on him giving any evidence in a future or concurrent prosecution. Michael Cohen did plead guilty in federal court to eight counts including tax fraud, false statements to a bank, and campaign finance violations. The campaign finance violation charges are due to payments made to two women, who said they had affairs with Trump and who were paid to keep silent before the 2016 election. Cohen stated, at the time of his guilty plea, that he made the payments in “coordination” with and at the “direction” of an unnamed “candidate.” While this statement implicates the President, it is not an “flipping” on him.
Michael Cohen’s plea deal specifies a range of possible sentences, under the Federal Sentencing Guidelines. It also states that the plea deal requires the defendant to “clearly demonstrate acceptance of responsibility” for the crimes he is pleading guilty to. It does not state what his actual sentence will be and specifically states that both the prosecution and defense understand that the court is not “bound” by the Guidelines.
You can read the plea agreement here: https://www.cnn.com/2018/08/21/politics/read-michael-cohen-plea-deal/index.html
All of this means that Cohen did not “flip” or agree to give evidence in exchange for a better plea deal.
But, putting aside what actually happened in court on Tuesday, what about Trump’s claim that flipping “almost ought to be illegal”? Plea deals are routinely structured to require defendants to testify against others in exchange for a better deal. For example, the Fort Worth Start Telegram on Friday reported on a multi-defendant robbery-homicide in Tarrant County in which several of the defendants have agreed to testify against one defendant, in exchange for better deals (in this case sentences of 20 or 25 years in prison). See here: https://www.star-telegram.com/news/local/community/arlington/article217192900.html
Federal prosecutors tend to use this type of plea deal more frequently than state level prosecutors. This is because most defendants in standard cases have no one to “flip” against. This kind of deal works best with certain kinds of criminal cases. If the defendant is a low ranking player in a criminal organization, getting them a better deal to testify against higher ranking players is often the only way that prosecutors can effectively prosecute high ranking gang or mob leaders. The practice allows prosecutors to use the testimony of lower ranking players to build their case against those higher up in the criminal enterprise. As the Tarrant County case illustrates, prosecutors also use this type of plea deal in multi-defendant cases where one defendant is more culpable and they want to ensure they have enough evidence to secure a conviction for the highest possible charge (such as capital murder).
Federal prosecutors are able to prosecute certain cases only because they can offer a better deal to defendants who will give information and testimony in exchange for a better plea deal or immunity from prosectuion. There are, however, many countries that do not allow this type of deal. Some don’t have plea bargaining, and some limit plea bargaining so that this is not allowed. Banning “flipping” would make it tougher to prosecute organized crime cases. Prosecutors would have to gather evidence and not be able to rely on testimony to substitute for other types of evidence. Banning “flipping” would also make it harder on those defendants who have information that can help the prosecution in other more serious cases. The option of “flipping” is often the only leverage that defendants have in a plea bargain negotiation to get a better deal. The offer to “flip” can also help lower ranking defendants to secure deals for immunity from prosecution in exchange for cooperation and testimony. For example, David Pecker, from the National Enquirer, was reportedly granted immunity in connection with the investigation into Cohen’s payments to the two women.
For now, despite Trump’s protests, both prosecutors and defense lawyers are unlikely to support changing the rules to ban the practice of “flipping” for better deals as it fits important interests for both. The Mueller investigation is an example of a careful and methodical prosecution that seems to include the full array of prosecutorial tools, including flipping, although not by Michael Cohen. At least not yet.
Good post, Cynthia. Consistent with your argument, there’s an excellent article in the Washington Post by defense attorney Ken White, “Witnesses ‘Flipping’ Does Corrupt Justice. But Not Because They’re ‘Rats.’ President Trump is right, but for the most cynical reasons possible.”
Regarding Mr. Trump, he cites Tom Wolfe’s observation that “a liberal is a conservative who’s been arrested.” Supposed champions of “law and order” suddenly become outraged about claimed abuses of the criminal justice system whey they and members of their tribe are prosecuted.
Mr. White’s article provides a useful and sad summary of the great potential for routine abuse by prosecutors in low-profile cases. I think that it’s important for prosecutors to have substantial discretion and I assume that most of them exercise it honorably. In the investigations related to Mr. Trump, there isn’t any indication that prosecutors have abused their authority. However, Mr. White’s article points to actual abuses and, indeed, systemic abuse that’s built into the system for poor defendants.