News broke that President Donald Trump’s former lawyer and fixer, Michael Cohen, reached a plea agreement with federal prosecutors investigating hush-money payments to women. According to the New York Times report, the deal does not include a requirement that Cohen cooperate with federal authorities in their ongoing bank fraud investigation or Special Counsel Robert Mueller’s investigation into Russian election interference and related crimes. In court, Cohen plead guilty to eight federal criminal counts, including two that relate to payments to women in violation of campaign finance law. In an astonishing development, Cohen told the court he engaged in those campaign finance crimes at the direction of the candidate, Donald Trump.
Here we offer a few points in question-and-answer format about where things stand as to Cohen’s future cooperation. Further, we explain why the absence of a cooperation agreement does not foreclose the possibility of federal investigators obtaining Cohen’s testimony.
Why is there no cooperation agreement?
There could be lots of reasons prosecutors and Cohen failed to reach a cooperation agreement. Perhaps Cohen decided he did not want to cooperate. If true, Cohen and his team might be executing a pardon strategy. Cohen may think he has a good chance of obtaining a presidential pardon if he refuses to cooperate. While that would normally be the equivalent of a Hail Mary legal strategy, President Trump has signaled his willingness to use the pardon power to benefit those he deems loyal political allies. That said, the messaging from Cohen’s legal team has been pretty antagonistic to President Trump of late.
Sometimes as the plea bargaining negotiations progress, it becomes apparent the potential cooperating witness does not possess sufficient valuable information. That is a bit harder to believe given that Cohen was at the center of President Trump’s international business development and, apparently, hush money operations.
It is also possible Cohen tried to cooperate but the prosecutors decided he wasn’t truthful. As the prosecution loses confidence in the veracity of the potential cooperating witness, the value of that testimony to the investigation diminishes. Ultimately they might have determined the juice might not be worth the squeeze.
Does that mean prosecutors will never find out what Cohen knows?
Not necessarily. Even though Cohen has apparently not entered into a cooperation agreement, he might still end up having to cooperate. The Mueller prosecutors could now elect to subpoena him to the grand jury. They would not have taken this step before because Cohen would have just asserted his Fifth Amendment rights against self-incrimination. Under Kastigar v. United States, the Fifth Amendment can be overcome if the prosecutors grant the witness use immunity.
Before Cohen’s plea deal, prosecutors would not have wanted to grant him use immunity without first addressing Cohen’s own criminal responsibility. But that’s now been done. Presumably the investigation has uncovered all there is to know about Cohen’s possible exposure on collusion with Russia so the Mueller prosecutors would feel comfortable giving him immunity for any collusion crimes as well. So if the Mueller prosecutors subpoena Cohen and he asserts the Fifth Amendment, they could grant him use immunity. Prosecutors do not give anything up under this scenario because the investigation has uncovered all his criminal wrongdoing. If he refuses even after immunized, then prosecutors would move to compel his testimony. If he still refuses, he will go to jail in contempt.
That kind of detention is called “coercive contempt” because it is designed to force the testimony rather than punish the recalcitrant witness. Cohen would, in effect, have the keys to his own jail cell. He could testify at any time and get out. The contempt jail time would not count against the jail time that he might have to do as a result of his guilty plea. And, of potential relevance in these unprecedented circumstances, a presidential pardon does not operate against coercive contempt—it only reaches crimes. (For those keeping score, Sheriff Joe Arpaio’s conviction was a criminal offense of contempt rather than coercive contempt.
If Cohen may be forced to testify anyhow, then why not just enter into the cooperation agreement so that he could get credit for his testimony?
This brings us back to the first question. Cohen might have refused because he wanted to remain loyal to Trump, or he may have tried and the prosecutors assessed that his information wasn’t worth a cooperation deal. Of course, if they thought he did not have valuable information, it is hard to imagine they would bother subpoenaing him to appear before a grand jury. It’s also possible, but highly unlikely, that Cohen’s legal team just failed to game these scenarios out.
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Over the weekend, President Trump’s personal lawyer Rudy Giuliani infamously declared that “Truth isn’t truth.” Without endorsing that Orwellian formulation, in Cohen’s case, no cooperation deal does not necessarily mean no cooperation.