COHEN'S ADVENTURES IN THE CESSPOOL OF UNCONDITIONAL LOYALTY
Untitled, Watercolor, 21” x 28”, Richard J Van Wagoner, Circa 2005, Courtesy of Van Wagoner Family Trust**
HIS VENEER OF LOYALTY WILL CRACK
Few people can escape Mr. Trump without the permanent stench, but they willingly compromise themselves by agreeing to the association. Some are eager. Maybe turnabout’s fair play. Given the recent exposure of Mr. Cohen’s adventures in the Trump cesspool, pundits are opining Mr. Cohen’s fierce loyalty to Mr. Trump will crack, becoming conditional-to-non-existent when the likelihood of having to face years, possibly decades, in state and/or federal correctional facilities sinks in.
“Love is preserved by the link of obligation . . . Which is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails.”
The primary if not singular qualification to working for Mr. Trump is unconditional loyalty, a loyalty, experience teaches, extending only one direction. Due to the character of the people who are willing to exhibit such fidelity to a person of Mr. Trump’s character, it is a loyalty that cannot be trusted. Why? It attracts unprincipled people. Those willing to practice such loyalty must, by definition, be deficient of other qualities, such as personal integrity, self-respect, unselfishness, honesty, competence and . . . well, loyalty. Maybe even basic humanity.
Unconditional loyalty begins to crack under the weight of its one-sidedness and the prospect of facing the loss of one’s personal liberty, family, livelihood, property and resources. Federal criminal law counts on it, providing a snitch-rich environment, incentivizing fierce disloyalty to everyone except self. For compromised targets on the cusp of losing everything, that line between love and hate, loyalty and betrayal quickly fades. For “bad dudes” who have the goods on “badder dudes,” federal law provides opportunities to earn shorter prison terms and even a lower level and number of criminal charges with other less adverse consequences to liberty and property interests.
Parenthetically, were I as a criminal defense attorney in the business of offering up tangible benefits in exchange for testimony, I’d be in prison for witness tampering, obstruction of justice, bribery or extortion.
So I’ve decided to write about what a Cohen cooperation agreement could begin to look like in the Southern District of New York.
• Let’s say federal investigators and prosecutors, who are in the business of enforcing the rule of law, believe Mr. Cohen has information about Mr. Trump and/or others above him (Cohen) in the proverbial food chain that is of interest to federal investigators and prosecutors.
• Let’s also say the United States Attorney for the Southern District of New York has collected evidence that if presented would likely cause a grand jury to issue an indictment against Mr. Cohen alleging certain financial crimes committed in or tied to the District. Let’s say the crimes are serious and involve a lot of money, and that upon conviction Mr. Cohen could spend the better part of the rest of his life in prison. Hypothetically, the charges could include multiple counts of money laundering, bribing foreign officials to advance business opportunities (Foreign Corrupt Practices Act), various types of fraud (mail, wire, bank and tax), structuring financial transactions to avoid detection, extortion, providing false information to federal investigators, campaign finance violations and, of course, RICO (Racketeer Influenced Corrupt Organization Act—originally enacted to combat organized crime).
• The level of cooperation prosecutors ultimately get out of Mr. Cohen, if any, may depend largely on (1) the quality and experience of his lawyers, (2) the number of charges, (3) the types of charges, (4) the strength or quality of the evidence against him, (5) the amount of money involved in the crimes, (6) whether any of the crimes carry minimum-mandatory prison terms upon conviction, (7) other aggravating and mitigating factors under the complex morass of the Federal Sentencing Guidelines, (8) the Federal Sentencing Guideline range in which his criminal conduct falls, (9) the person or persons about whom he has incriminating information, (10) the quality of that information, (11) whether the government has other sources for such information and, of course, (12) the depth and quality of his loyalty to protect others who are disloyal to him at his own expense.
• The US Attorney could present the evidence to the grand jury or approach counsel for Mr. Cohen to discuss a possible cooperation agreement before filing charges. Some targets are led to believe their early cooperation will bode even better for them than a later change of heart because it can show the government and the sentencing judge they (1) accept responsibility for their misdeeds, (2) are not forcing the government to expend what could be considerable resources to prosecute and (3) have the goods on others, that is, they are able and willing to provide the United States “substantial assistance” in the resolution of crimes against others. Some targets need the additional nudge of actual criminal charges on file to get the message. Others will never fold. That’s what trials are for. The prosecuting agency may have other reasons to withhold filing charges before exploring potential cooperation with the target.
• The government’s ultimate sentencing recommendation to the court will depend largely on the prosecutor’s assessment of whether the defendant lived up to the terms of the cooperation agreement and the quality of information he provides against others. Once he enters the agreement the target has great incentive to be as forthcoming as possible, some even to the point of becoming creative in their recollection and reconstruction of events.
I previously posted about immunity agreements and the dance in which prosecutors and defense attorneys often engage to come to their terms. Cooperation agreements, which include criminal charges to which the defendant will enter a guilty plea, include many of the same considerations.
Assuming a target/defendant enters a cooperation agreement with the government which includes criminal charges to which the defendant enters a plea of guilty, the court will eventually sentence the defendant. The cooperator’s sentence is often delayed until after fulfillment of the terms of the agreement, including the prosecution of others which may require the cooperator’s testimony before a grand jury, at trial or both. Thus it makes sense to delay sentencing so the defendant continues to have full incentive to complete all terms of his agreement to cooperate and the government can make an appropriate sentencing recommendation to the court based on its assessment of the quality of the cooperation.
Federal sentencing can be very complex. Generally speaking, the sentencing court’s discretion is constrained by Congress—statute—which requires consideration of seven factors. Those factors, listed below, have their own subsets of factors. I leave much of that for another day:
Offense and offender characteristics;
The need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation;
The sentences legally available or mandated;
Sentencing Commission Guidelines [very complex mathematical calculation in months with a low end and a high end based on discrete sentencing factors. For example, a sentence range could be 110-121 months. The factors include criminal history, the types of crimes (e.g., fraud), the amount of money involved or quantity of drugs, aggravating factors, mitigating factors, and acceptance of responsibility];
Sentencing Commission policy statements;
The need to avoid unwarranted sentencing disparities; and
The need for restitution.
The Eighth Factor
If the defendant agrees to provide the United States substantial assistance in the resolution of other crimes and fulfills that agreement, the government assesses the quality and value of that assistance and then recommends to the court some level of “downward departure” (shortening) of the recommended length of incarceration based on the Guideline range. What follows are portions of a typical cooperation agreement between the United States and a criminal defendant. This particular agreement with which I have taken some liberties (the link is below), contemplates filing charges pursuant to an “information” rather than an “indictment” and only after the agreement is consummated.
Again, the purpose for the defendant entering such an agreement is to mitigate the consequences of his criminal conduct to the extent humanly possible by helping the United States prosecute others. Please focus on the Defendant’s Obligations and Government’s Obligations below. The broad power disparity is typical in such agreements. A cooperating defendant faces many landmines for violation and gives the government many opportunities to back out. The defendant may be able to improve the terms of the agreement depending on who it is he can incriminate, the quality of his incriminating evidence, and whether the government has no other sources for such evidence.
A. Scope of Agreement: The Information to be filed in this case charges the defendant ______with ______ counts of participating in______ in the Southern District of New York, in violation of ______. This document contains the complete Plea and Cooperation Agreement between the United States Attorney's Office for the Southern District of New York (the "government"), and the defendant regarding this case. This Plea and Cooperation Agreement is limited to the United States Attorney's Office for the Southern District of New York and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities.
B. Court Not a Party: The Court is not a party to this Plea and Cooperation Agreement. Sentencing is a matter solely within the discretion of the Court, the Court is under no obligation to accept any recommendations made by the government, and the Court may in its discretion impose any sentence it deems appropriate, up to and including the statutory maximum stated in this Plea and Cooperation Agreement. If the Court should impose any sentence up to the maximum established by the statute, the defendant cannot, for that reason alone, withdraw his guilty plea, and he will remain bound to fulfill all of the obligations under this Plea and Cooperation Agreement. The defendant understands that neither the government, defense counsel, nor the Court can make a binding prediction or promise regarding the sentence he will receive.
A. Waiver of Indictment and Guilty Plea: The defendant will waive indictment by grand jury, waive venue, and plead guilty to a ______-count Information, substantially in the form attached hereto as______charging him with ______. The defendant agrees that he is, in fact, guilty of those charges and that the facts set forth in the Factual Basis attached hereto . . . are true and accurate.
B. Restitution: The Mandatory Victim Restitution Act requires the Court to order restitution to the victims of certain offenses. Payment should be made at such times and in such amounts as ordered by the Court______. The government and defendant agree to recommend that the Court order defendant to pay restitution in the amount of______. The defendant understands that this Plea and Cooperation Agreement is voidable by the government if he fails to pay the restitution as ordered by the Court. Defendant further agrees that he will not seek to discharge any restitution obligation or any part of such obligation in any bankruptcy proceeding.
C. Agreement to Cooperate: The defendant agrees to cooperate fully with the government and any other federal, state, or local law enforcement agency, as directed by the government. As used in this Agreement, "cooperation" requires the defendant: (1) to respond truthfully and completely to all questions, whether in interviews, in correspondence, telephone conversations, before a grand jury, or at any trial or other court proceeding; (2) to attend all meetings, grand jury sessions, trials, and other proceedings at which the defendant's presence is requested by the government or compelled by subpoena or court order; (3) to produce voluntarily any and all documents, records, or other tangible evidence requested by the government; (4) not to participate in any criminal activity while cooperating with the government; and (5) to disclose to the government the existence and status of all money, property, or assets, of any kind, derived from or acquired as a result of, or used to facilitate the commission of, the defendant's illegal activities or the illegal activities of any conspirators.
If the defendant commits any crimes or if any of the defendant's statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein. The determination whether the defendant has violated the Plea and Cooperation Agreement will be under a preponderance-of-the- evidence standard. If the defendant violates the Plea and Cooperation Agreement, he shall thereafter be subject to prosecution for any federal criminal violation of which the government has knowledge, including but not limited to perjury, false statements, and obstruction of justice. Because disclosures pursuant to this Agreement will constitute a waiver of the Fifth Amendment privilege against compulsory self- incrimination, any such prosecution may be premised on statements and/or information provided by the defendant. Moreover, any prosecutions that are not time-barred by the applicable statute of limitations as of the date of this Agreement may be commenced in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of any such prosecutions. The defendant agrees to waive all defenses based on the statute of limitations or delay of prosecution with respect to any prosecutions that are not time-barred as of the date of this Agreement.
If it is determined that the defendant has violated any provision of this Agreement or if the defendant successfully moves to withdraw his plea: (1) all statements made by the defendant to the government or other designated law enforcement agents, or any testimony given by the defendant before a grand jury or other tribunal, whether before or after this Agreement, shall be admissible in evidence in any criminal, civil, or administrative proceedings hereafter brought against the defendant; and (2) the defendant shall assert no claim . . . that statements made by the defendant before or after this Agreement, or any leads derived therefrom, should be suppressed. By signing this Agreement, the defendant waives any and all rights in the foregoing respects.
E. Payment of Fines: . . .
THE GOVERNMENT'S OBLIGATIONS
A. Incarceration Range: The government will recommend that the defendant be sentenced to the bottom of the applicable Guideline range for his offense, as determined by the United States Probation Office.
B. Acceptance of Responsibility: The government agrees that a two-level reduction in defendant's offense level for his full and clear demonstration of acceptance of responsibility is appropriate . . ., will not oppose such a reduction, and will so move so long as the defendant pleads guilty, meets with and assists the probation officer in the preparation of the pre-sentence report, is truthful and candid with the probation officer and the Court, and does not otherwise engage in conduct that constitutes obstruction of justice either in the preparation of the pre-sentence report or during the sentencing proceeding.
C. Reduction of Sentence for Cooperation: The government agrees to recommend at the time of sentencing that the defendant's sentence of imprisonment be reduced to reflect his substantial assistance to the government in the investigation and prosecution of others, pursuant to U.S.S.G. § 5K1.1. The defendant understands that he must comply with paragraph II. D. of this Plea and Cooperation Agreement. The defendant understands that the government's recommended reduction in his sentence will depend upon the level of assistance the government determines that the defendant has provided. The defendant further understands that a motion pursuant to U.S.S.G. § 5K1.1 is only a recommendation and is not binding on the Court.
Other than as set forth above, the government agrees that any incriminating information provided by the defendant during his cooperation will not be used in determining the applicable Guideline range in his case, pursuant to U.S.S.G. § 1B1.8. . . .
A. Statutory Authority: The defendant understands that the Court must consult the Federal Sentencing Guidelines (as promulgated by the Sentencing Commission pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998, and as modified by United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005)) and must take them into account when determining a final sentence. The defendant understands that the Court will determine a non-binding and advisory Guideline sentencing range for this case pursuant to the Sentencing Guidelines. The defendant further understands that the Court will consider whether there is a basis for departure from the Guideline sentencing range (either above or below the Guideline sentencing range) because there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. The defendant further understands that the Court, after consultation and consideration of the Sentencing Guidelines, must impose a sentence that is reasonable in light of the factors . . . .
ENTIRE PLEA AND COOPERATION AGREEMENT
Other than this Plea and Cooperation Agreement, no agreement, understanding, promise, or condition between the government and the defendant exists, nor will such agreement, understanding, promise, or condition exist unless it is committed to writing and signed by the defendant, counsel for the defendant, and counsel for the government.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.