“Michael Cohen has a family,” Avenatti said. “He has kids. I understand that he's a fairly devoted father, and he's not going to look at his wife and say, 'No, I'm going to go take a bullet for this president' and go serve decades or 10 years or five years — I think it's at least 10 — in a federal penitentiary. Why would he do that? I mean this is a man that — listen, Mr. Trump left him behind when he went to Washington. He hasn't done him any favors.”
Avenatti's speculation that Cohen could face prison time is based on news that Cohen is under federal investigation for possible bank fraud, wire fraud and campaign finance violations. Last Monday, FBI agents raided Cohen's office, home and hotel room, seizing records related to his clients and personal finances.
Some of the records were related to Cohen's $130,000 payment in 2016 to Daniels, the porn star who claims to have had an affair with Trump more than a decade ago. Daniels is suing Trump in an effort to void a nondisclosure agreement she signed in exchange for the money. Trump said earlier this month that he did not know about the payment at the time, and Cohen has said he paid Daniels with his own funds and did not tell Trump about the transaction.
Daniels's lawsuit contends that Trump did know about the deal. Daniels and Avenatti are clearly hoping that the new legal pressure on Cohen will compel him to tell prosecutors that Trump was involved.
“There's no question in my mind” that Cohen will turn, Avenatti said.
Despite Avenatti's stated confidence, a flip by Cohen is no sure thing, according to Julie Rose O'Sullivan, a former assistant U.S. attorney in the Southern District of New York, where federal prosecutors are reviewing Cohen's case.
“In my experience, whether people cooperate or not is as much a matter of personality, including appetite for risk, as it is a hardheaded calculation,” said O'Sullivan, now a professor at the Georgetown University Law Center. “So, yes, it is possible, but it also very possible that he will take his chances.”
Ellen S. Podgor, a white-collar-crime specialist at the Stetson University College of Law, said that “it is common for individuals who have their backs against the wall, resulting from their own misconduct, to offer up others in exchange for their leniency.”
She added that “many people do cooperate who were previously best friends [or] close business partners. The pressures can be astronomical in these situations.”
Podgor noted, however, that although the Cohen case was referred to the U.S. attorney's office in Manhattan by special counsel Robert S. Mueller III, the Cohen case is separate from Mueller's probe of Russian interference in the 2016 presidential election and possible coordination with the Trump campaign. Therefore, it is unclear whether prosecutors in New York would be willing to grant leniency to Cohen in exchange for information about Trump.
Mueller would surely be interested in information about Trump, but Mueller is not handling the Cohen case. And, Podgor said, “We don't know if [Cohen] has anything to cooperate about, with respect to the president.”
There is one other factor that Avenatti and Daniels might not have considered.
“If this stays in the federal system, and if they do seek cooperation from Michael Cohen, will the possibility of him receiving a presidential pardon keep him from cooperating, assuming that they have evidence against him?” Podgor asked.