Renato Mariotti
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@renato_mariotti
THREAD: What does the potential cooperation of Michael Cohen mean for the Mueller investigation?
1/ Today @abcnews reported that Michael Cohen is likely to cooperate with federal prosecutors in Manhattan. He has reportedly fired his defense attorneys.
2/ It’s not surprising that Cohen is moving towards cooperation, if the @abcnews reports are correct. When the FBI executes a search warrant at your home and office, you’re in trouble. The judge in the Stormy Daniels case concluded Cohen is likely to be charged, and he’s right.
3/ Although Cohen is cooperating with federal prosecutors in Manhattan (not Mueller’s team), cooperation deals typically require the cooperator to provide all information about any criminal activity he knows about. Prosecutors then share that info with other jurisdictions.
4/ Assuming that Cohen has information that will be useful to law enforcement—information that will lead to charges against others—he will get a deal. But one unusual complication is that Cohen is an attorney and some information he has may be about former clients.
5/ There are ample examples of attorneys who are prosecuted—I tried and convicted one—but when they cooperate, everyone involved needs to make sure attorney-client privilege is respected.
6/ Most conversations involving criminal activity likely won’t be privileged because they don’t involve legal advice. Only conversations about legal advice are privileged. A conversation about legal advice isn’t privileged if the advice is used to further the crime.
7/ That last sentence is called the “crime/fraud” exception to attorney-client privilege. It’s more limited than some commentators suggest, but combined with the fact that most criminal conversations aren’t about legal advice, likely few of Cohen’s conversations were privileged.
8/ It’s also worth noting that federal prosecutors allege that Cohen didn’t practice law much, and thus far the documents they seized are consistent with that allegation. The retired judge reviewing the Cohen documents found that less than 1/10th of one percent were privileged.
9/ So if Cohen cooperates, he will have to tell almost all of what he knows about criminal activity to federal prosecutors, who can share that info with Mueller, other federal prosecutors, and state prosecutors.
10/ Trump could derail all of this with a pardon of Cohen. His recent talk of pardons appears to be an attempt to reduce the political damage of giving pardons. If Trump pardoned Cohen for federal crimes, state prosecutors would have to use the evidence gathered by the FBI.
11/ That could result in a cooperation deal for state, not federal authorities. By moving towards cooperation now, Cohen is signaling that he doesn’t believe he will receive a pardon—or he’s trying to get one sooner rather than later.
12/ Regardless of how it plays out, Cohen’s cooperation is a blow to the Trump team and could strengthen the case Mueller is building. How much it helps Mueller depends on what Cohen knows and how forthcoming he is.