Flipping is critical to getting justice
In an interview with Fox News this morning, President Trump frontally attacked the practice of prosecutors using accomplice witnesses to prosecute and convict other criminals. The President blasted his former attorney, Michael Cohen, for “flipping” on him — and praised another ex-lieutenant with legal trouble, Paul Manafort, for hanging tough.
“For 30, 40 years,” he said, “I've been watching flippers. Everything's wonderful and then they get 10 years in jail and they — they flip on whoever the next highest one is, or as high as you can go.”
“It's called flipping and it almost ought to be illegal,” he said, because “they just make up lies. I've seen it many times.”
This statement is totally dumbfounding coming from a President of the United States who is charged in the Constitution with taking “care that the laws be faithfully executed” and oversees the Department of Justice, the prosecuting arm of the United States government.
As a former Department of Justice prosecutor, both on the Watergate Special Prosecution Force, and as an assistant U.S. attorney in the Southern District of New York, and now a criminal defense lawyer, I have observed first hand the need for flipping criminals to testify against other criminals. Criminal organizations, whether Mafia or whitecollar corporate criminals plotting in a backroom social club or a fancy board room, function in secrecy, with the heads of those organizations insulating themselves from detection by only communicating with a select few trusted lieutenants.
The most effective way to provide a jury with a firsthand account of this criminal activity is through the testimony of an insider who can explain in detail to the jury how the crime was committed and who was involved. While the government has the legal right to obtain court-authorized wiretaps to record criminal activity as it occurs, statements on tapes can be ambiguous without an insider explaining the context of what was being said.
The criminal trials in which accomplice witnesses testify and defendants are convicted are legion. The Watergate coverup trial featured former Nixon White House Attorney John Dean, who gave a first-hand account of the defendants' efforts to obstruct the Department of Justice's investigation into the Watergate break-in. Based on this accomplice testimony, the jury convicted President Nixon's top aides, including his former campaign manager and attorney general, of obstruction of justice and perjury.
But this is not just about political corruption; it's about day-to-day crime, white- and blue-collar alike.
In the late 70s and early 80s, I prosecuted a number of corporate executives and mafia figures for racketeering, stock fraud, bankruptcy fraud and other crimes arising out of the operation of the Westchester Premier Theatre in Tarrytown, New York. The witnesses at all of these trials included multiple individuals who flipped and provided testimony against their former cohorts. The defendants convicted on the basis of this accomplice testimony included not only two Mafia bosses but an executive of Warner Communications. Without testimony from these flippers, none of these defendants would have ever been brought to justice.
Trump's statement that people are convicted because these flipping insiders “just make up lies” completely misdescribes how our jury system works. Juries do not convict solely on the word of a flipper. Prosecutors recognize that juries need supporting evidence to demonstrate that the flipper is telling them the truth when it comes to the defendants' crimes — whether it be documents, tapes or the testimony of witnesses not involved in the crimes.