Saturday, December 1, 2018

Cohen's sentencing memorandum

From Renato Mariotti, attorney and former federal prosecutor:

Late on Friday night, Michael Cohen's attorneys filed his sentencing submission.

A sentencing memorandum is a document that defense attorneys write and submit to a court before a client is sentenced so that the judge can consider all of the facts and circumstances surrounding their client and his conduct when he is sentenced.

In many cases, there are disputes between the prosecutors and defense about what the defendant did, what sentencing guidelines apply to the defendant, or what the sentence should be. In the case of a cooperator like Cohen, I expect the only disagreement to be the sentence.

It's important to note that if a cooperator like Cohen made a false factual assertion about his cooperation or his criminal activity, the prosecutors would make that known to the judge. You can be confident that this document is consistent with Mueller's knowledge.

The most interesting thing in the document, by far, is Cohen's discussion of his false statements to Congress. His attorneys carefully discuss the false statements, his motivation to make the false statement, and the involvement of Trump's staff and attorneys.

Because the precision of their words is important, I'm going to type out their exact words here. They refer to Trump as "Client-1" throughout but I've changed that to "Trump" here for clarity:

"Michael's false statements to Congress likewise sprung regrettably from Michael's effort, as a loyal ally and then champion of Trump, to support and advance Trump's political messaging. At the time that he was requested to appear before the [House and Senate Intel Committees], Michael was serving as personal attorney to the President, and followed daily the political messages that both Trump and his staff and supporters repeatedly and forcefully broadcast. Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House based-staff and legal counsel to Trump."

That last sentence is extremely important and interesting. It is also very carefully worded. The sentence strongly implies that White House staff and Trump's attorneys knew in advance that Cohen would lie to Congress and were involved in crafting his statements. But it does *not* come out and say that. It is important to note that Cohen's attorney does not allege that Cohen was *directed* to lie to Congress. Yet Cohen's lawyer has not been shy about having him say that Trump directed him to commit the campaign finance violations. If he could truthfully say that Cohen was *directed* to lie, I believe he would be obligated to do so because it would be a mitigating fact that the judge should consider. But Cohen's attorney suggests that Cohen felt pressure to lie and that Trump's staff and attorneys knew.

Essentially what Cohen's attorney is saying is that Cohen read Trump's anti-Mueller messaging (discussed at length in the memorandum), knew that he was supposed to be consistent with Trump's lies, and did so.

He was also in "close and regular contact" with White House staff and Trump's lawyers about what he would say. The implication is that they knew the testimony he was going to provide to Congress was false and let him go forward and lie, or at least didn't correct the record.

So do Trump's staff members and attorneys have any liability? Possibly, although it appears that they tried to be careful to mislead Congress and the public in a manner that would not create personal liability.

Depending on what Trump’s staff and attorneys knew, this could very well be a conspiracy to lie to Congress, which is a crime. (A conspiracy is just an agreement to commit a crime.) But it may be extremely difficult to prove based on what Cohen’s attorney said.

What it would take to prove a conspiracy of that nature is testimony from another co-conspirator (a Trump attorney or staffer) that their conversations with Cohen were a way for him to run his lies past them for approval, and they approved the lies. Emails or other documentation proving that point would also potentially prove a conspiracy along those lines. I suspect that Mueller and House Democrats will try to find out what evidence exists of knowledge, approval, or coordination of Cohen’s lies. [...] Their defense would be that Cohen testified about many matters and that they weren’t focused on these specific portions of his testimony, and/or that they didn’t even know those portions of his testimony were false at the time. Prosecutors would have to prove otherwise.

So what does the rest of the sentencing memorandum say? Quite a bit.

First, the sentencing memorandum repeats the statement Cohen made under oath that Trump directed Cohen to commit the campaign finance violations, and provides important context to help the judge understand those violations and Trump's involvement in them. Specifically, Cohen "kept his client [Trump] contemporaneously informed and acted on his client's instructions. This is not an excuse, and Michael accepts that he acted wrongfully [...] Nevertheless, we respectfully request that the Court consider that as personal counsel to Trump, Michael felt obligated to assist Trump, on Trump's instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign *and* cause personal embarrassment to Trump and his family."

That last line is an attempt by Cohen's attorney to suggest that the offense is less serious than if the payments were just meant to influence the election. That is *not* a legal defense. It's a crime nonetheless, and Cohen acknowledges that. His attorney minimizes the conduct because his job is to provide context that would reduce Cohen's sentence. He's doing his job. That's also why he is pointing to the extent to which Cohen kept Trump informed of his actions at the time--more detail on that is given in the memorandum--and acted on his orders. It's not an excuse but it helps provide context that explains why he committed the crimes.

The next interesting part of his memorandum is its description of Trump's legal and PR strategy. This is quite a statement to make on behalf of the president's former personal lawyer: Cohen was "personally aware of Trump's repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Trump that investigations of such ties were politically motivated and without evidentiary support."

What Cohen's lawyer carefully does not say is whether those statements are true or false. But he immediately follows that statement by focusing on the specific falsehood at issue here and noting that it was also part of Trump's false messaging.

Part of what is going on here is that Cohen's attorney is explaining that Trump's extreme strategy of casting the entire investigation of him as false is a mitigating circumstance the judge should consider when taking into account his own crime of lying to Congress. But the description itself is quite an acknowledgement on his part.

The last part of Cohen's sentencing memorandum that is worth discussing here is his description of his cooperation. Cohen described in detail his cooperation with Mueller and other prosecutors.

Cohen said that he participated in seven separate interviews with Mueller and that he met with representatives of the New York Attorney General concerning their civil lawsuit against the Trump Foundation and provided documents to them.

Cohen also said that he met with the New York State Department of Taxation and Finance and has complied with numerous requests for information from them. Also, Cohen claims that the decision to push forward without a traditional cooperation deal was his own decision.

He claims he is eager not to delay his sentencing, and wants to be sentenced now before his cooperation is completed, even though he intends to cooperate further. This is a very unusual and risky strategy by Cohen. The judge can't be sure that he will continue cooperating.

And that brings me to the last point. After disputing how the sentencing guidelines are calculated--Cohen believes the guidelines range should be 46 to 57 months--he asks for time served. I don't believe he will receive a sentence of time served.

That said, based on my experience prosecuting and defending federal criminal tax and fraud violations, I expect Cohen to receive a sentence well below the guidelines range. He will get some prison time but it may be less than some uninformed or disingenuous observers predict.

Official document: Sentencing Memorandum on Behalf of Michael Cohen

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