The epic struggle for Michael Cohen’s soul and testimony

“What do they have on Cohen? What, if anything, does Cohen have on President Trump? How loyal is Cohen? Does he believe he will be pardoned if he refuses to cooperate? One conclusion is clear: Prosecutors have the upper hand in this epic battle.”

Alan Dershowitz writes:

There is an epic battle for the soul, cooperation and testimony of Donald Trump’s lawyer, Michael Cohen, whose office was recently searched by federal authorities. Prosecutors are almost certainly trying to flip him, that is, turn him against his client and into a cooperating government witness. The president’s lawyers certainly would prefer him to remain loyal to his client, either by testifying in his favor or invoking his Fifth Amendment privilege to remain silent.

Each side has powerful weapons. Prosecutors can threaten him with double-digit prison sentences, while President Trump has the constitutional power to pardon him, either before or after trial. This struggle illustrates one of the most disturbing disparities in our criminal justice system. Under current law, prosecutors can threaten Cohen with life imprisonment unless he cooperates with them. Prosecutors have been known to threaten parents, siblings, spouses and even children unless the recalcitrant witness agrees to testify for the government.

I have seen such threats in many cases, including those of Michael Milken and Jonathan Pollard. In one case in which I was counsel, prosecutors threatened to go after my client’s 24-year-old son who was about to graduate from Columbia Law School. In the current investigation, the special counsel threatened to prosecute the son of former national security adviser Michael Flynn, unless he cooperated.

Of course, prosecutors need some basis for threatening relatives, in the form of some possible wrongdoing on their part. But often it’s minimal, as evidenced by the fact that they end the threat if the cooperation is obtained. Not surprisingly, these threats often work. Not only do they get flipped witnesses to “sing,” they often get them to “compose,” that is to embellish, elaborate or even make up incriminating stories. These threatened witnesses know that the better the story, the sweeter the deal.

I am not suggesting that prosecutors or FBI agents deliberately suborn perjury, though some do, but rather that the sword of Damocles hanging over the heads of flipped witnesses incentivizes them sometimes to compose. There are few limits to what a prosecutor or FBI agent can do to coerce a reluctant witness to give the government what it wants. There are cases in which government agents threaten to send a reluctant witness to a prison where he will be raped by other inmates.

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