- Trump’s former personal lawyer Michael Cohen and former campaign chairman Paul Manafort have both been charged in special counsel Robert Mueller’s probe into Russian interference in the 2016 election.
- While Cohen has cooperated extensively with investigators, Manafort is playing into Trump’s fixation with loyalty and angling for a presidential pardon.
- Legal experts say that given the magnitude of Cohen’s cooperation and the risks of a presidential pardon, Cohen’s strategy is likely to net him the least amount of jail time – but nothing is set in Stone.
Special counsel Robert Mueller’s probe into Russian interference in the 2016 election has unfolded like an organised crime investigation – flipping lower-level witnesses up the chain to get to those at the top.
Two of the top people ensnared in Mueller’s crosshairs, Michael Cohen and Paul Manafort, have adopted markedly different legal strategies, with Cohen choosing to cooperate with law enforcement and Manafort seemingly holding out for a pardon.
Cohen – President Donald Trump’s long-time personal lawyer and fixer of over a decade – has opted to cooperate with federal law enforcement at every turn. Last week, he pleaded guilty on one count of lying to Congress, a crime that usually merits a sentence of around six months in jail, as part of a plea deal to cooperate with Mueller’s investigation.
“The Cohen strategy appears to look beyond the odds of winning or losing,” Alexander Stern, a practicing attorney in California who publishes legal scholarship on the Trump administration, told INSIDER on Thursday.
“Cohen knows that prosecutors are happy to agree with light sentencing recommendations for defendants who are also government witnesses…in exchange for major assistance prosecuting someone higher up on the totem pole.”
In August, Cohen also pleaded guilty in the Southern District of New York to eight federal crimes, including tax fraud, bank fraud, and campaign finance violations that he said he carried out at Trump’s behest. Cohen could have faced up to 65 years of prison, if he had gone to trial and had been convicted. Under the plea agreement, Cohen will likely serve three to five years.
While his August guilty plea did not include an explicit cooperation agreement, Cohen has given 70 hours of testimony to the special counsel’s office alone, has met with federal prosecutors in the Southern District of New York and state investigators in New York, and has also cooperated with a separate unknown “open inquiry” conducted by the New York Attorney General’s office.
“Federal prosecutors at this level do not waste 70 hours of their time if the witness is not very useful,” Stern said. “Every day that they spent interviewing Cohen they reassessed whether he continued to be more helpful, and they found at least 70 hours of value in him.”
Manafort was also charged with multiple serious crimes relating to his decades of work lobbying for a pro-Russian Ukrainian political party in the US – but chose to hedge his bets in the courts rather than cooperate.
Manafort was first charged in December 2017 in the District of Columbia on 12 counts of crimes including money laundering and failing to register as a foreign agent, and he and his deputy Rick Gates were charged again in the Eastern District of Virginia on 18 counts of tax and bank fraud.
While Gates chose to take a plea deal and testify against his former mentor, Manafort went to trial. In August, he was convicted on eight counts, with a mistrial declared on the other ten after jurors could not come to a consensus.
While he opted to take a plea deal with the special counsel’s office ahead of his second trial scheduled for December, a November court filing from Mueller’s office accused Manafort of breaching his plea agreement and lying to the special counsel’s office and the FBI. A memo from the special counsel’s office, expected to be filed Friday, may reveal more details as to how Manafort violated his agreement.
Now, Manafort’s only hope to avoid spending the rest of his life in prison is a presidential pardon – something Trump has frequently dangled before him, telling reporters he believed Manafort’s treatment was “unfair” and calling him “brave” for not flipping.
“Manafort’s strategy boils down to putting everything on black in roulette,” Stern said. “If everything goes right for him, he gets a full pardon and goes home. Cohen is himself asking for a sentence without jail time.”
In a recent interview with the New York Post, Trump said a possible Manafort pardon “was never discussed, but I wouldn’t take it off the table. Why would I take it off the table?”
“Trump has introduced a massive variable that almost no defence attorney will know how to reliably assess: a pardon,” said Stern. “No lawyer is trained on how to assess the likelihood that this particular president will actually follow through with any suggestions of a pardon.”
On Twitter and in public, Trump has slammed people like Cohen for cooperating with Mueller and said “flipping” in criminal cases should be outlawed while bemoaning the charges against Manafort as a”hoax” and praising other non-cooperators like informal campaign adviser Roger Stone – statements that some legal experts warned came dangerously close to witness tampering.
“At the end of the day, Cohen may serve a relatively small amount of time and have a felony record forever,” Stern predicted. “Manafort will probably serve much more time unless Trump pardons him, in which case he could get the better deal.”
While the President’s pardon powers are virtually unlimited when it comes to federal crimes, Stern warned such a move could prove legally risky for Trump. If Trump pardoned Manafort in an effort “to get evidence against him or his family buried,” it could be construed as criminal obstruction of justice.
“I favour Cohen’s approach and think it will net him the most legal benefit,” Stern concluded. “However, Trump is nothing if not surprising. Anything could happen.”
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