PARDON MY COOPERATION
Untitled, Watercolor, 29" x 21", Richard J Van Wagoner, Circa 2005, Courtesy Van Wagoner Family Trust**
RATS: “I know all about flipping, for 30, 40 years, I’ve been watching flippers. . . . If you can say something bad about Donald Trump and you will go down to two years or three years, which is the deal [Michael Cohen] made, in all fairness to him, most people are going to do that. . . . I have had many friends involved in this stuff. It’s called flipping, and it almost ought to be illegal. . . .” Donald J. Trump.
Section 5k1.1 of the United States Federal Sentencing Guidelines Manual says:
"Substantial Assistant to Authorities (Policy Statement)
"Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines [shorten the time to be spent in a federal correctional facility].
"(a) The appropriate reduction shall be determined by the court for reasons stated that may, but are not limited to, consideration of the following:
"(1) the court's evaluation of the significance of the usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
"(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
"(3) the nature and extent of the defendant's assistance;
"(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
"(5) the timeliness of the defendant's assistance."
This means, simply, the more valuable the information Mr. Manafort has in assisting the United States in resolving crimes against others, the less time Mr. Manafort will serve in a federal correctional facility. The Department of Justice will assess the level of his cooperation before Mr. Manafort is sentenced on the two conspiracy counts to which he pleads guilty in the United States District Court, D.C., and likely in the Eastern District of Virginia, so the DOJ can tell the courts just how valuable the assistance has been.
The Fifth and Fourteenth Amendments to the United States Constitution suggest governments in the United States — federal, state, local — are not despotic. A truism, at best. Conceptually, a person is under no true compulsion to participate in his own prosecution through disclosure or confession, but courts have narrowly construed those protections. Courts sanction almost every means creative investigators and prosecutors can imagine to trick people into “voluntarily waiving” their Fifth Amendment rights, short of beating it out of them.
On occasion prosecutors conclude someone holds information of such importance they are willing to barter for it. Other times the government chooses to compel disclosure through grants of immunity even when its repository has no interest in sharing: if the government gives immunity from prosecution, the recipient can be compelled to disclose but might prefer to sit in jail rather than suffer the consequences of being considered a snitch. Being a snitch can be bad and being dead can be worse.
A subject or target of a criminal investigation, or a defendant, say a Mr. Manafort, who thinks he has something of value to exchange for reduced charges or reduced time in a federal correctional facility, might entice the government when the government wants to hook a big fish and, if it means landing a whale, catching (and sometimes releasing) smaller ones.
Defendants want as much as possible in exchange for as little as possible — the epitome of a free market, what a willing buyer will pay and a "willing" seller will accept — and contract law, with the threat of losing greater portions of one’s liberty interest overshadowing the process. The government wants valuable, admissible evidence against others. The person bartering for reduced charges and prison time generally won't want to "rat" on others, but will, and wants a deal that allows him to disclose everything he’s ever said, stolen, damaged, assaulted, killed, buried, smoked, snorted or f*&$ed in exchange for a promise of no further prosecution and greater liberty and, of course, the governments most favorable recommendation to the judge at the time of sentencing.
Considerations for the government's entering a cooperation agreement are similar to those for granting immunity. They may include:
• What is the information and what’s its value to the government? The government will not “buy a pig in a poke,” a comment I hear virtually every time I engage a prosecutor in immunity or cooperation discussions. The government usually requires a “proffer” from the lawyer, that is, a fairly detailed description of what the lawyer believes the client has to say so the government knows whether it would receive anything of value in exchange before entering an immunity or cooperation agreement. The proffer will be given in the context of settlement discussions, which courts encourage, so the Rules of Evidence generally prohibit its use in court. Moreover, the lawyer can fashion the proffer in such a way as to otherwise prevent its use as evidence. It’s for discussion purposes only. It helps when the prosecutor and defense attorney trust each other.
• Does the person seeking reduced charges or prison time have information on someone higher in the food chain than himself? An already disgraced former campaign manager is a a very compelling target, but in context the DOJ, might consider the candidate himself who, say, collaborated with a cold war enemy to influence the election, as more compelling.
• Does the person seeking reduced charges or prison time have information about crimes against the United States committed by others and are they serious?
• Does the government already have the information that is being offered, making cooperation of little value to the government?
• If the government already has the information being offered, is the government’s possession in a form that can be used in court: does it satisfy the Rules of Evidence?
• Is the person seeking reduced charges or prison time credible, believable, if he must be called as a witness? Clearly, the fact that someone has bartered for freedom in exchange for becoming a government witness makes him and his credibility easy targets for impeachment on cross examination.
• Is the information credible, believable, verifiable through some independent source?
Another consideration here, which is unlike any other type of case, is whether the defendant has credible, incriminating information against the president of the United States, someone the DOJ policy pronouncement says, at least for now, cannot be indicted while in office. Again, time to change the policy and, if the facts and evidence support it, use this as the test case.
*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.