There is an epic battle for the soul, cooperation and testimony of Donald Trump’s lawyer, Michael Cohen, whose office was recently searched by federal authorities. Prosecutors are almost certainly trying to flip him, that is, turn him against his client and into a cooperating government witness. The president’s lawyers certainly would prefer him to remain loyal to his client, either by testifying in his favor or invoking his Fifth Amendment privilege to remain silent.
Each side has powerful weapons. Prosecutors can threaten him with double-digit prison sentences, while President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE has the constitutional power to pardon him, either before or after trial. This struggle illustrates one of the most disturbing disparities in our criminal justice system. Under current law, prosecutors can threaten Cohen with life imprisonment unless he cooperates with them. Prosecutors have been known to threaten parents, siblings, spouses and even children unless the recalcitrant witness agrees to testify for the government.
Of course, prosecutors need some basis for threatening relatives, in the form of some possible wrongdoing on their part. But often it’s minimal, as evidenced by the fact that they end the threat if the cooperation is obtained. Not surprisingly, these threats often work. Not only do they get flipped witnesses to “sing,” they often get them to “compose,” that is to embellish, elaborate or even make up incriminating stories. These threatened witnesses know that the better the story, the sweeter the deal.
I am not suggesting that prosecutors or FBI agents deliberately suborn perjury, though some do, but rather that the sword of Damocles hanging over the heads of flipped witnesses incentivizes them sometimes to compose. There are few limits to what a prosecutor or FBI agent can do to coerce a reluctant witness to give the government what it wants. There are cases in which government agents threaten to send a reluctant witness to a prison where he will be raped by other inmates.
There are other cases in which the government pays enormous sums of money to get a witness to testify. There is at least one case in which the government offered the witness a contingent-fee bonus if his testimony resulted in a conviction. None of this is regarded by current law as tampering with a witness or obstruction of justice if done by law enforcement officials. Contrast that with what a defendant and his lawyer can and cannot do to a potential witness. They can’t do anything without running afoul of the law. Unlike the president, ordinary defendants cannot pardon potential witnesses, nor can they replicate coercive tactics used by the prosecutors and FBI agents.
If a defendant, who believes that a potential witness is about the lie, simply asks the witness to tell the truth, the defendants can be charged with obstruction. If he merely advises the witness that he has the Fifth Amendment right not to testify, he can also be charged with obstruction of justice. If he offers the witness a single penny to testify truthfully in his behalf, he is tampering with a witness. The law says that a witness, in theory, belongs to neither side — every witness belongs only to “the truth” — but in practice, witnesses are owned lock, stock and barrel by the prosecution. They can be bought, rented, coerced, threatened and then thrown away like a rotten piece of fish.
Why does this disparity exist in the law today? For several reasons. First, prosecutors and former prosecutors who serve in legislatures get to write the laws, and former prosecutors who serve as judges get to interpret them, so the criminal justice system ends up heavily skewed in favor of prosecutors. Second, the system trusts prosecutors more than defense attorneys to serve the interest of truth. Third, many of these flipped witnesses are former associates of the target or subject, and they won’t testify against their friends unless pressured or coerced to do so.
These may be understandable reasons but the effect of the disparate rules is to give prosecutors enormous leverage over potential witnesses. The ordinary citizen has no comparable leverage. Even the president’s leverage — the power to pardon — is limited. If President Trump were to pardon Cohen, the latter could be called as a witness, and Cohen would probably not be able to invoke his privilege against self-incrimination. Moreover, there are those who argue that a president could be charged with obstruction of justice if he pardoned a potential witness in order to get him to not testify against him.
I disagree. President George H.W. Bush did precisely that: He pardoned Caspar Weinberger and five other defendants on the eve of their trials. Here is how Lawrence Walsh, independent counsel at the time, characterized that pardon: “The Iran-Contra cover-up has continued for more than six years, has now been completed with the pardon of Caspar Weinberger … In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.”
Yet, no one suggested charging President Bush with obstruction of Justice. It is impossible to predict at this time whether Cohen will flip with so many variables. What, if anything, do they have on Cohen? What, if anything, does Cohen have on President Trump? How loyal is Cohen? Does he believe he will be pardoned if he refuses to cooperate? One conclusion is clear: Prosecutors have the upper hand in this epic battle.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against BDS: Why Singling Out Israel for Boycott is Anti-Semitic and Anti-Peace.” You can follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.