USA TODAY International Edition
A Tale of Two Michael Cohens
Trump’s ex-lawyer should bring a toothbrush today
The clock is ticking for Michael Cohen, President Donald Trump's former personal attorney and fixer. Though he has asked for no jail time, the real question is how much he'll get in light of dueling sentencing memos that paint entirely different pictures of him.
The Manhattan U.S. Attorney's Office asked last week in a sentencing memo that Cohen receive “a substantial term of imprisonment.” Special counsel Robert Mueller said in his own memo that Cohen's sentence “should reflect the fact that lying to federal investigators has real consequences.”
Charles Dickens' masterful novel “A Tale of Two Cities” begins this way: “It was the best of times, it was the worst of times.” Those sentencing papers and an earlier filing by Cohen's attorneys reflect a similar study in contrasts — a tale of two Michael Cohens.
Cohen's lawyers offered testimonials from friends who described the private Michael Cohen as a “truly caring” man with a “huge heart” who is not only “an upstanding, honorable, salt of the earth man” but also a “selfless caretaker.” That choirboy stands in sharp opposition to Cohen's public persona as Trump's legal bulldog, who once threatened a reporter with: “What I'm going to do to you is going to be f---ing disgusting. Do you understand me?”
Prosecutors focused their sentencing memo on Cohen as Mr. Hyde. They discussed evidence of his personal tax and bank fraud convictions. They cited his efforts to influence the 2016 presidential election by paying hush money to two women who allegedly had affairs with Trump. And they said he “knowingly sought to undermine core institutions of our democracy.” Mueller presented facts that emerged when Cohen pleaded guilty to lying to Congress to bolster Trump's claims that he had no business dealings with Russia.
Rebuffing efforts by Cohen's attorneys to recast him as a good guy who made a few small mistakes, prosecutors cited evidence that Cohen got ahead by employing a “pattern of deception that permeated his professional life.” They attributed his crimes to “personal greed,” an effort to “increase his power and influence,” and a desire to maintain his “opulent lifestyle.”
Perhaps the most damning reveal in the U.S. Attorney's sentencing memo is that Cohen refused to fully cooperate. As a former federal prosecutor who handled hundreds of plea deals like Cohen's, I can say it is extremely rare for any credit to be recommended when a defendant decides not to sign a full cooperation deal. The only reason for a refusal would be to hide information. The prosecutors said as much: Cohen refused “to be debriefed on other uncharged criminal conduct, if any, in his past,” and “further declined” to discuss “other areas of investigative interest.”
Given that most federal prosecutors would have told Cohen “full cooperation or no cooperation,” the intelligence information Cohen offered Mueller must have been useful. Mueller's memo says Cohen provided information at the “core” of the investigation into Russian interference in the 2016 presidential election. Mueller also strongly implies that Cohen's disclosures implicate the president in criminal activities.
Neither the New York prosecutors nor Mueller recommended a specific sentence for Cohen. However, the U.S. Attorney hinted that 42 months in prison would be an acceptable “modest variance” from Cohen's 51-to-63 month guideline range and would sufficiently reward Cohen for his limited cooperation. The court typically places great reliance on a prosecutor's recommendation for a reduction in sentence based on cooperation. If I were advising Cohen, I would encourage him to bring his toothbrush to court today.
It is striking how thoroughly the prosecution filing undoes the sentencing papers from Cohen's attorneys. They say he should be allowed to pay his debt to society by skipping prison and beginning his life “virtually anew.” That's not going to happen. Michael Cohen was a member of the president's inner circle who participated in continuous, aggressive and often illegal representation of his biggest client. When you are a key ingredient in the combustion of a global nightmare, a fairy tale is unlikely to follow.