Michael Cohen’s bombshell: What it means legally and why he probably isn’t cooperating… yet

President Trump’s fixer-in-chief has reversed course, subjecting himself to potential perjury charges, to tell the world that Trump knew about, and approved, the now infamous Trump Tower meeting in June 2016. Having worked for thirteen years as a federal prosecutor in the Clinton, Bush and Obama administrations, I can report that if true, Mueller is one giant step closer to proving that Trump knowingly and intentionally participated in an illegal quid pro quo (a “this” for “that” exchange); namely, accepting “dirt” on Hillary Clinton in exchange for the promise to reduce, eliminate, or withhold sanctions on Russian senior officials and oligarchs.

Critically important to this analysis is the fact that federal bribery law – 18 U.S.C. § 201 – criminalizes such conduct not as of the date a candidate is sworn into office as Trump was on January 20, 2017, but rather much earlier as of the date a candidate is “nominated’ for office or “officially informed” that he will be so nominated. Those dates are July 19, 2016 or earlier, making Cohen’s allegation extremely significant. 

{mosads}President Trump and anyone who might have conspired with him to consummate a quid quo pro relationship or knowingly participated in acts to further such a scheme in the months that followed would be subject to stiff 15 year maximum prison terms, which could be supplemented with even more serious honest services fraud and RICO charges, each carrying prison terms of 20 years or more. These combined charges would dwarf the more commonly discussed campaign finance and conspiracy to defraud the United States charges, each of which carry relatively short 2 to 5 year maximum prison terms. 

Indeed, the harsher charges are exactly the type of hammer Mueller needs to go after, and flip, those closest to the President: Donald Trump Jr. and Jared Kushner. Lesser felonies won’t do it.  With credit for good behavior in jail for the lesser charges, Trump Jr. or Kushner could be out of minimum security prison camps in as little as one year or less. Conspirators don’t flip on their father or father-in-law, especially when he is the President of the United States, under such circumstances. However, their decision on whether to flip becomes much more difficult, especially for Kushner who is not a blood relative and has 3 young children, if they legitimately face 10 to 15 years in prison. That’s how federal prosecutors do business.   

So, why isn’t Cohen cooperating? He appears desperate to do so. Unfortunately, for Cohen, the prosecutors’ hands may be tied due to the attorney-client privilege. If prosecutors were to interview Cohen and learn information that was ultimately deemed privileged, it could upend their investigation. The prosecutors and agents who heard any privileged statements might then have to be removed from the case, and any evidence that flowed from the privileged statements – called “derivative” evidence – may then have to be suppressed. Unwinding such a quagmire would be potentially devastating for the prosecution. 

Make no mistake:  Mueller’s team wants to meet with Cohen. The assertion that Muller may have so much evidence that he does not need Cohen is bogus. Every prosecutor wants more evidence, or at the very least, an opportunity to hear such evidence. Obtaining a criminal conviction – convincing all 12 jurors beyond a reasonable doubt — is difficult under most circumstances. When the case involves the President of the United States, the stakes are that much higher.

A federal judge, special master, and multiple parties have debated potentially privileged documents for months to ensure that privileged material does not bleed into the mix; and those are documents that can be analyzed in a calm, static environment. Prosecutors have no idea what may come out of Cohen’s mouth during an interview. Statements that seem innocuous at first may later prove to be privileged. The risks are great. 

That is not to say that prosecutors are happy Cohen is running his mouth in the media.  They are very likely wringing their hands. One explanation for Cohen’s seemingly counterproductive conduct may be that it is part of an effort to force Mueller into a cooperation agreement. But, Mueller’s seemingly masterful understanding of the endgame and risks involved makes it extremely unlikely he will be moved. 

Quandaries such as this are where lawyers in high stakes criminal cases earn their keep. My suggestion – albeit somewhat radical – is for Mueller to ask Trump to waive the attorney-client privilege for all communications with Cohen in exchange for Mueller agreeing not to question or subpoena the President. Under such a deal, Mueller could freely question Cohen, Trump would avoid the giant pitfalls associated with testifying under oath, and Cohen could finally cooperate and be silent.

Relinquishing an opportunity to question the President would be a huge concession by Mueller – one that many prosecutors, including myself (as a former prosecutor), would not give up — but getting closer to charging and possibly flipping Trump Jr. or Kushner may be worth the price. 

In this case, one quid pro quo may deserve another.   

Seth Waxman, a former federal prosecutor and current partner in the law firm of Dickinson Wright, worked for more than 20 years on complex, white collar criminal cases.