In the Cohen case, don’t buy the ‘vast government conspiracy’ defense

Attorney Michael Cohen has not been charged with a crime but President Donald Trump and his defenders apparently are so concerned about what incriminating information Cohen may give to prosecutors in the Southern District of New York (SDNY) that they have begun a campaign to discredit the entire federal criminal justice system.  

These attacks, however, distort how the system actually works, do not withstand scrutiny, and come at the expense of public confidence in our criminal justice process.

{mosads}One theory advanced by Professor Alan Dershowitz (and echoed by President Trump) goes like this: Prosecutors misrepresent the evidence to a judge to get a search warrant of Cohen’s emails, home and office. After conducting these searches, prosecutors threaten Cohen with a life sentence and threaten innocent family members or associates with prosecution for crimes they did not commit in order to coerce Cohen to cooperate with authorities. Once the prosecutors have extorted Cohen into flipping, they then force him to give false testimony in order to charge other innocent people further up the chain.  

This is a reckless attack on career prosecutors and federal judges in an attempt to undermine a basic premise of our criminal justice system: the impartial cultivation of evidence and the objective application of that evidence to the criminal laws. If the Dershowitz theory is to be believed, our entire system is a sham and thousands of criminals are wrongfully convicted every year based on false testimony by cooperating witnesses. With 26 years of combined experience as prosecutors in the SDNY, we know firsthand that this theory is utterly fallacious.

The Dershowitz theory assumes that prosecutors have far more power than they in fact have, particularly in white-collar cases where mandatory minimum sentences do not apply. Prosecutors do not control or decide a defendant’s sentence — that is the role of judges — so baseless threats that Cohen will spend the rest of his life in prison have no merit and would carry no weight with an experienced defense attorney. The same goes for cooperation: Prosecutors can recommend leniency but a judge ultimately determines the sentence.  

Second, when prosecutors discover evidence of serious crimes, it is incumbent upon them to investigate those crimes regardless of how they learned about them. The reality is that good information often comes from bad actors. If, during the course of an investigation, prosecutors believe an individual — Michael Cohen in this case — is well situated to cooperate and provide evidence, then it is perfectly appropriate and wise to seek his cooperation. Indeed, as our experience prosecuting organized crime cases taught us, cooperator testimony is often the only path to hold accountable those more responsible for these crimes who often insulate themselves from the core criminal activity.

To be sure, there may be times when prosecutors uncover criminal conduct by family members and close friends of a target because, as you might expect, criminals prefer to rely on those they trust when committing crimes. But prosecutors simply do not threaten to charge innocent people, including family members, with crimes they have not committed to convince targets to cooperate.

The decision to cooperate is made by the cooperator himself after extensive consultation with experienced defense counsel about the benefits and risks. Once an individual decides to cooperate, he must truthfully and forthrightly admit all of his own criminal conduct, and that of everyone he knows. It is an all-or-nothing exercise; one cannot cooperate against some people but not against others, or about some crimes but not others. Once the prosecutors have heard the witness’s information, they then must determine if that information is corroborated by comparing it to other evidence.  

Critically, prosecutors do not offer cooperation agreements to witnesses if their information is not corroborated and vetted, and prosecutors do not charge other targets based solely on the uncorroborated testimony of one cooperating witness.

The notion that someone could “compose,” or make up, a story to fit the prosecution’s narrative is belied by the requirement that a cooperator’s testimony must be extensively corroborated by other evidence. If, for example, Michael Cohen were innocent but made up a story admitting his own guilt under oath before a federal judge — which he would be required to do as part of his cooperation — as well as that of the president or other individuals, his story would not be corroborated by any other evidence. In fact, such a fabricated story almost certainly would be directly contradicted by other independent evidence. He therefore would not be believable to the prosecution or to a jury.

In our experience, savvy defense attorneys who know their client is in trouble commonly attempt to “put the government on trial.” This tactic involves attacking the prosecution and the system in an effort to distract a jury (or the public) from compelling evidence against a defendant. It’s a defense of last resort and almost always backfires. More than 90 percent of federal criminal jury trials result in a conviction and many of those trials rely heavily on cooperator testimony. In other words, juries don’t buy the “vast government conspiracy” defense, and neither should the American public now.

In his recent op-ed in this publication, Professor Dershowitz asserted there is an “epic battle for the soul” of Michael Cohen. What is at stake here, however, is not Michael Cohen’s soul but, rather, the soul of our nation and its centuries of reliance on the rule of law.  

Miriam Rocah was an assistant U.S. attorney in the Southern District of New York from 2001 to 2017 and held many supervisory positions, including chief of the Organized Crime Unit and co-chief of the White Plains Division. She is a Distinguished Criminal Justice Fellow at the Elisabeth Haub School of Law at Pace University. Daniel S. Goldman was an assistant U.S. attorney in the Southern District of New York from 2007 to 2017, deputy chief of its Organized Crime Unit and a senior trial counsel in the Securities and Commodities Fraud Unit. Both provide frequent legal analysis on MSNBC, CNN and other networks.