With five guilty pleas and 24 indictments already filed, special counsel Robert S. Mueller III poses an obvious threat to the White House. President Trump admits as much with his incessant attacks on the investigation. But an even greater risk is on the horizon: Michael Cohen’s public statements Monday and other recent signs strongly suggest that Trump’s longtime consigliere will seek to “flip” on the president, becoming a government cooperator and potential star witness. Because of his role as Trump’s fixer, Cohen is more likely than anyone else to have damaging information on the president.
To criminal law practitioners like us with many decades of experience dealing with cooperators, Cohen fits the profile of someone extremely likely to be targeted by investigators seeking to proceed up the criminal food chain. There is apparently significant evidence of Cohen’s own potential criminality — as evidenced by prosecutors successfully obtaining a search warrant of his premises, which is highly unusual against a lawyer in an investigation of alleged white-collar crimes. Potentially facing a substantial jail sentence and crippling financial penalties, Cohen is highly motivated to place his own interests above that of his former patron and trade information about the president and others for his own freedom.
The first sign of a potential forthcoming deal was when Cohen fired his team of lawyers last month in favor of a lawyer at a boutique firm of former federal prosecutors. While not by itself definitive, such a change of counsel, in our experience, often signals a change in strategy.
Then the identity of Cohen’s new lawyer was revealed. Guy Petrillo and his partners all previously worked in the same U.S. attorney’s office that raided Cohen’s office and is leading the investigation of him. Petrillo once worked side by side with the current prosecutor overseeing the investigation, as well as with Trump’s principal antagonist, former FBI director James B. Comey, and for another Trump adversary, Preet Bharara, who warmly praised Petrillo on Twitter after his appointment as a “beloved” alumnus of the very prosecution office where any deal will be cut.
Next, Cohen himself began acting in a manner that suggests a new perspective on Trump — for example, publicly criticizing the president’s immigration policies in a letter resigning as deputy finance chair of the Republican National Committee.
But it was Monday that confirmed Cohen is ready to cooperate. When asked point-blank by ABC News’s George Stephanopoulos how he would choose between continuing to protect the president and safeguarding his family from the consequences of a prosecution, Cohen answered, “To be crystal clear, my wife, my daughter and my son, and this country, have my first loyalty.” He then all but admitted his new lawyer would be attempting to get a cooperation deal: “Once I understand what charges might be filed against me, if any at all, I will defer to my new counsel, Guy Petrillo, for guidance.” He is also reportedly exiting from a “joint defense agreement” with Trump that allowed them to share information about legal proceedings — another typical sign of coming cooperation with the government.
Of course, this could all be a ploy to have Trump pay Cohen’s legal fees, as he has reportedly requested, or even to angle for a pardon. But for Trump, offering large payments or a future pardon risks the accusation that he is engaged in witness tampering or obstruction of justice. If he granted Cohen a pardon, that could precipitate abuse-of-power hearings in Congress, tip public opinion further against Trump — and unleash state attorneys general to go after Cohen for state charges Trump cannot pardon under the Constitution. The New York attorney general has demonstrated her readiness to act independently with her recent lawsuit against Trump for infractions at his charitable foundation.
So the most likely Cohen scenario is that he does make a deal. In that case, Cohen’s lawyer would first “proffer” the areas where Cohen might be able to provide evidence to support the investigation and prosecution of others. Then Cohen himself would meet with prosecutors and divulge everything he knows about his and others’ potential illegal activities, including Trump’s. That could, as with former national security adviser Michael Flynn, result in a plea to a single charge carrying no jail time — or something more (or less) serious, depending on Cohen’s own alleged wrongdoing and the quality of the information he has to offer.
That information about Trump would probably fall into three categories: political, business and personal. For example, Cohen reportedly participated in numerous Trump-related matters concerning Russia, and prosecutors would no doubt be interested in learning what he did and discussed with Trump. These efforts included one during Trump’s 2016 presidential campaign to discuss building a Trump Tower Moscow. Cohen also allegedly served as an intermediary in 2017 between a Ukrainian politician to deliver a proposal to lift Russian sanctions to Flynn before Flynn resigned as national security adviser. Then there is the explosive claim that Cohen met in 2016 in Prague with Russians, which he hotly disputes but which the McClatchy Washington bureau says it has confirmed.
Other, purely business-related disclosures could also be menacing to Trump. He has sought or won deals for years in other countries besides Russia with high corruption risks, including Indonesia, India and Brazil, where people he has done business with have faced corruption allegations, as well as Kazakhstan and the Republic of Georgia. Cohen participated in at least the latter two and may have witnessed what went on in others. Such efforts could support allegations of a range of possible crimes, such as foreign bribery, money laundering and bank fraud. (The same is true with respect to Trump’s reported pattern of all-cash U.S. property sales to Russian and other foreign buyers.)
Similarly, Cohen’s involvement with payments to Stormy Daniels and other women during the campaign could make him a witness to potential legal violations. A formal referral has been made by the Office of Government Ethics to the Justice Department to evaluate possible charges against Trump for failing to disclose his Stormy-related debt on his financial disclosures, prompted by a complaint by Citizens for Responsibility and Ethics in Washington, which one of us chairs. Cohen might also be able to prove that or campaign finance violations in connection with the payments. Perhaps as importantly, Cohen’s role as the fixer to clean up Trump’s alleged indiscretions and other missteps could give prosecutors a window into areas where Trump may have been the most reckless.
What this all may mean for Trump remains to be seen. It is, of course, an open legal question whether Mueller will determine that he can indict the president while he remains in office. The pressure to indict will surely be much more intense if the special counsel has Cohen serve as a “Sherpa” to lead him and his colleagues through evidence of criminal activity.
Even if Mueller does not indict Trump, if Cohen has significantly incriminating evidence to offer against the president, that would increase the likelihood of congressional action, from censure to potentially impeachment. While Republican support for the president seems strong at the moment, that was also the case for Richard Nixon — until it wasn’t.