In the cases of Cohen, former campaign adviser George Papadopoulos, former campaign chairman Paul Manafort, and former national security adviser Michael Flynn, Mueller has proceeded to the sentencing of each without first making him testify at trial against others.
That’s at odds with the common practice of prosecutors — which is to hold the stick of a tougher prison sentence over defendants until they have completed all of their cooperation, particularly any public testimony.
While the recent legal action has led to speculation that prosecutors are narrowing in on the president in anticipation of more criminal charges, Mueller’s sentencing timeline suggests a different outcome to some legal experts — that the accounts of those cooperating witnesses will appear in a written report, not in court.
Cooperators “usually go last,” said Robert Ray, a former independent counsel on the Whitewater investigation.
The sentencing of those Mueller defendants “suggests to me that whatever those individuals have done for the special counsel investigation, there is no further use for them,” Ray said. “If there were any contemplation of using them at trial, you would sentence them later. And the only conclusion I can draw from all that is that we are nearing the end.”
Ray said he expects Mueller to deliver a report on his findings in the first three months of 2019. Mueller may also be willing to proceed quickly to sentencing cooperators in part because he expects to present more information in a report than at any trials.
A spokesman for Mueller declined to comment.
Only one of the known criminal cooperators in Mueller’s cases has been handled in the more traditional manner: Rick Gates. Gates pleaded guilty to financial crimes, testified at trial against his former boss Manafort, and is awaiting sentencing.
That approach can leave a valuable witness waiting for many years to receive their sentence. One of the longest and most famous examples is Jamal al-Fadl, a former aide to Osama bin Laden who turned government witness and testified against al-Qaeda. He pleaded guilty in 1997, and although court records indicate a sentencing was scheduled in 2014, there’s no record it actually occurred.
Different factors can weigh on sentencing decisions, and Cohen’s case was arguably the most complex that Mueller has handled, because it involves two separate cases prosecuted by two offices — Mueller’s and the U.S. attorney’s office in Manhattan.
Yet even there, potential witnesses were given their sentence before they had to speak at a trial against anyone else. Cohen got three years in prison for financial crimes, including hush-money payments during the 2016 campaign to keep quiet women who claimed to have had affairs with Trump. That sentencing incorporated the guilty plea Cohen struck with Mueller for lying to Congress about attempts during the 2016 presidential campaign to build a Trump Tower in Moscow.
After his sentencing, the New York prosecutors also announced they had reached a deferred prosecution agreement with AMI, the parent company of the National Enquirer tabloid, for buying the silence of one of those women. Once again, prosecutors had taken away the threat of a possible prison sentence.
“That is in contrast with how it’s normally done,” said Patrick Cotter, a former federal prosecutor now in private practice in Chicago. “In most large investigations, the way you do it is you make deals with whomever you’re going to make a deal with, they plead guilty, but then their sentencing is delayed until the investigation and trial are over, and they get their big fish, and the cooperator testifies or doesn’t. That is the very prevalent model.”
Prosecutors do it that way for a simple reason, Cotter said. Without the fear of a possible long sentence, a criminal “may lose his enthusiasm and flip back, and say he doesn’t remember things he already testified to.”
In the Mueller probe, that’s not just a hypothetical scenario. There are plenty of indications that, if called to testify, some of Mueller’s cooperators could retract what they have already admitted about themselves and said about others.
After pleading guilty to lying to the FBI, Papadopoulos, who recently completed his two-week jail sentence, has repeatedly suggested he was railroaded or framed. Flynn is awaiting sentencing next week, and his supporters have argued that he, too, was tricked into pleading guilty to lying to the FBI about his conversations with the Russian ambassador to the United States in late 2016.
After being convicted at one trial, Manafort struck a cooperation deal to avoid trial on a second set of charges. Mueller now says Manafort broke the terms of the deal by repeatedly lying to prosecutors about key details in his case.
Even the definition of cooperation has at times become strangely flexible in the Mueller probe.
At Cohen’s sentencing Tuesday, prosecutor Jeannie Rhee said Cohen had provided “credible and reliable information about core Russia-related issues under investigation.”
Yet the New York prosecutors who investigated Cohen’s finances were far harsher, saying Cohen had refused to provide full cooperation and was holding back.
Further complicating the issue, Cohen’s lawyer Guy Petrillo said his client was still willing to cooperate even after he goes to prison — and suggested Cohen has been more honest than others caught in Mueller’s crosshairs.
“His action stands in profound contrast to the decision of some others not to cooperate and allegedly to double deal while pretending to cooperate,” Petrillo said, in an apparent reference to Manafort.
Ultimately, U.S. District Judge William H. Pauley III sentenced Cohen to three years in prison, finding Cohen’s decision to volunteer some information to prosecutors but not all of what he knew “does not wipe the slate clean.”
Sometimes a prosecutor will move ahead with sentencing cooperators because “the big fish got away,” said Cotter, although he doesn’t believe that is the reasoning in Mueller’s case.
Cotter said Mueller’s decisions show he is confident that Manafort, Flynn, or Papadopoulos would stick to their story if they are ever called to testify at a criminal trial.
He also suggested Mueller may have another, more subtle reason for his approach — to send a message to other potential witnesses.
In that formulation, Mueller is providing an object lesson for the value of cooperation: Flynn, who cooperated early, is likely to get no prison time. Cohen, who cooperated somewhat, got several years in prison. Manafort, who failed to cooperate, is likely headed to prison for at least 10 years.
“Now, it’s very credible to go to the next guy and say, ‘You can be a Flynn, you can be a Cohen, or you can be a Manafort. Which is it going to be?’,” said Cotter. “For a prosecutor, that’s a very powerful piece of advertising.”