10 Quick Takes on Michael Cohen’s Recent Plea Agreement – And What Cohen and Roger Clemens Have in Common

November 29, 2018

Baseball backgroundBy: Sara Kropf

Remember when everyone was talking about whether now-Justice Brett Kavanaugh was lying to Congress when he seemed a bit less-than-candid about his drinking in high school?

Seems like a million years ago.

Anyway, it turns out that lying to Congress is a real thing! It can lead to real consequences!

I don’t think any criminal defense lawyer in her right mind thought that Kavanaugh would be charged with a false statement for saying that he never blacked out from drinking beer 35 years ago. Whether he lied when he answered questions about the timeline for learning of the allegations of sexual assault was a bit more serious.

But now, President Trump’s lawyer Michael Cohen has pleaded guilty a second time. This time it’s for lying to Congress.

Here is his plea agreement.

And here is the criminal information.

(An information is a type of charging document. It doesn’t need to be issued by a grand jury. An information is a simpler way to charge someone when there is a plea deal since the defendant can waive his right to a grand jury.)

Cohen apparently sent a two-page letter (JUST TWO PAGES) to the Senate Select Committee on Intelligence and to the House Permanent Select Committee on Intelligence. The committees were investigating Russian interference with the 2016 election. The letter discussed his efforts to help an unnamed company open a “branded property” in Moscow. He also testified before Congress.

(We all know what company is being described.)

The criminal information lays out certain false statements in the letter. For example, he said that the project in Moscow was over by January 2016 and had not been discussed extensively in the company. Another false statement was that Cohen “did not recall any Russian government response or contact about the Moscow Project.” Yet another was that he had not tried to arrange for “Individual-1” to go to Moscow in connection with the project.

A couple of preliminary thoughts after a quick read of both documents:

  1. This is a pretty minimal charge. It’s a plea to a single count of violating the false statement statute–18 U.S.C. § 1001. A 1001 plea is the the kind of plea you get when you have a client with a lot of good information to share. It’s a felony to be sure, but not a “substantive” crime like wire fraud. Here’s the text of the statute (with relevant portions bolded):

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

  1. Cohen’s plea means that he is willing to admit that all of those facts in his letter and testimony to Congress were false. It also means that he’s explained to the government how they were false. Perhaps most important, he may have explained to the government whether “Individual-1” or anyone at the company directed him to make false statements. That, my friends, is obstruction of justice.
  2. The contrast between Cohen and Manafort at this point is stark. Cohen is not looking for a pardon; he’s looking to serve little to no jail time at the end. It’s doubtful that Cohen has stayed in any joint defense—or common interest—agreement with Trump. He may never have been in one in the first place, but it’s hard to imagine that he’s in one now. That means that Trump’s lawyers are in the dark as to what Cohen told the government.
  3. The fact that Trump is the dark about what Cohen said to the government makes Trump’s answers to the written questions posed by the Special Counsel’s Office even more fraught. He has to consider that Cohen has given the government information about the topics in those questions that could contradict the answers he would like to give.
  4. The Special Counsel’s Office is willing to deal if the defendant’s information is worth it. They are giving Cohen a very light touch. That must be because he (a) has been cooperating fully, and (b) has the goods on someone. And we know who that someone probably is.
  5. The Cohen plea agreement puts the possibility of no jail time on the table. The offense level is 6 with a two-level reduction for acceptance of responsibility. Even with his other pleas, he’s likely still Criminal History Category I. So the possible sentencing range is 0-6 months.
  6. The Special Counsel’s Office does not seem inclined to enter into what are called “11(c)” pleas. Those kinds of plea deals give the defendant the option to back out of the deal if the sentencing court does not agree to a sentence in a particular range. It gives more certainty to a defendant. I’d guess that Cohen’s lawyers asked for one and were denied. However, it may be that the Special Counsel’s Office has indicated to Cohen’s lawyers that it doesn’t plan to ask for jail time, assuming he cooperates.
  7. What the government will actually ask for at sentencing will no doubt hinge on how “helpful” his cooperation is. Yes, that’s the standard. And who gets to judge it? The prosecutors. But if Cohen’s cooperation leads to other indictments and other convictions, it is more helpful. Then the prosecutors are more likely to ask for no jail time at sentencing.
  8. As long as he’s cooperating, Cohen will likely be able to delay sentencing. It’s much easier for prosecutors to have a cooperator who can easily talk to his lawyers and give answers when the prosecutors have small one-off questions. And it’s much easier to have meetings in the comfort of the prosecutor’s office and not in a prison visiting room.
  9. Since you made it to the end, you must really want to know what Cohen has to do with Roger Clemens. Well, you know who else was charged with lying to Congress? The Rocket. But he was acquitted of all charges.

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