Editor’s Note: Page Pate, a CNN legal analyst, is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his. Read more opinion articles at CNN.
We’ve become accustomed to President Trump criticizing Special Counsel Robert Mueller’s investigation, his own Justice Department and even Jeff Sessions, the man he personally selected to be his attorney general (over and over again).
On Fox News Thursday, he took it a step further. While continuing to vilify Michael Cohen, his former trusted lawyer and personal fixer, Trump took aim at one of the pillars of federal criminal prosecutions – the cooperating witness.
Trump said that cooperation deals are not fair and “almost should be outlawed.” “Flipping,” Trump said, “almost ought to be illegal.”
It is easy to see why the President would make such a “proposal.” To be sure, cooperating has its ugly side. And while the plea agreement that Cohen reached with prosecutors this week apparently did not require that he cooperate with federal authorities, Trump is no doubt worried about who may yet.
Just Friday, CNN reported that the chief financial officer for the Trump Organization, Allen Weisselberg, was granted immunity to provide information about the hush money payoffs made by Cohen on Trump’s behalf.
As a practicing defense lawyer in federal court, I’m very happy that the President made these “flipping” comments. I intend to quote him liberally in my next trial and I will suggest at every opportunity that cooperating witnesses cannot be believed, and that flipping itself should be outlawed.
But that argument ignores the fact that cooperating witnesses are the fuel in the tank that keeps the federal criminal justice system running. Without “flipping,” federal prosecutors would have a very hard time doing their job.
The fact is that cooperation is such a vital part of the federal criminal justice system that judges routinely instruct jurors who may be skeptical of the process that it is perfectly “lawful and proper,” although they may want to be a little more skeptical of the testimony of a witness who has a deal with the government.
Why? Let’s step back and consider how the cooperation deal process works:
I’ve been defending people charged in federal criminal cases for almost 25 years. In my experience, it is rare for a federal prosecution not to be based, at least in part, on the testimony of a cooperating co-defendant or co-conspirator.
No one really likes cooperating witnesses. They are loathed by everyone in the criminal justice system, often ostracized by their community, and they almost always shunned by their former associates and friends. If they are sent to prison, other inmates either avoid them or hurt them.
Even prosecutors distance themselves from their cooperators. After all, before they became trusted government witnesses, these people were criminals themselves. And it’s common for the people who end up cooperating to start out by lying to investigators.
A cooperator will often go through several different stories before finding something close to the what the government calls “the truth” (“the truth” being defined here as what the government believes happened).
But snitching in criminal cases, especially in federal court, has become so ingrained that the entire system would soon collapse if it disappeared. Cooperating, by whatever name you call it (for Trump, “flipping”), works because it helps secure convictions in otherwise tough cases.
In many criminal cases, the only witness with knowledge of how the crime was planned and committed will be someone who actively participated in it. Although defense lawyers like me may not like it, cooperating witnesses can help the prosecution by providing firsthand knowledge of illegal conduct or by connecting the dots in a complicated case.
Understandably, people charged with a crime are usually not going to incriminate themselves and their associates (which often include family members and close friends) unless they can get something significant in return. And the one thing that the government can give to someone like this is a break on their eventual sentence.
Perhaps, unlike Michael Cohen, people don’t strike a deal with the government out of “patriotism and love of country.” It’s because they can reduce jail time.
And I’m not talking about a day or two. I’ve represented people who cut their sentence in half, and sometimes completely avoided prison, by cooperating with the government.
Because of this potential benefit, lawyers representing people charged in federal court must discuss the risks and benefits of cooperating with the government. Personally, I don’t like it. But I would not be doing my job if I didn’t bring it up. The conviction rate in federal court is ridiculously high, and the benefits of cooperating can be very attractive, especially for the first guy who talks.
Trump is right to suggest that “flipping” can be unfair and susceptible to abuse. I have cross-examined many snitches in federal courtrooms across the country who I am certain were lying. It’s hard to blame them, given what they face otherwise.
Every plea agreement in federal court requires the cooperator to be “truthful;” again, the government decides if it is, and also, initially whether a cooperator will get any credit at all. So, it should come as no surprise that cooperators quickly learn that the only way they get time off their sentence is to please the government, and that usually means helping them convict someone else.
If President Trump really wanted to “outlaw” flipping as he has suggested, he could do it today. All he needs to do is to instruct the Justice Department to immediately stop bargaining for the testimony of cooperating co-defendants and co-conspirators.
Of course, if he does that, he needs to understand that the number of people convicted in federal court will dramatically plummet. And the number of acquitted defendants will almost certainly include a few guilty ones in the mix.
I’m sure most criminal defense lawyers will join me in thanking President Trump for his comments today. He has made our jobs a lot easier. But he shouldn’t be surprised if the career federal prosecutors who represent the United States in courtrooms across the country feel very differently.