Trump’s verdict on ‘flipping’ puts prosecutions at risk

Trump’s verdict on ‘flipping’ puts prosecutions at risk
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The frenzy of recent news included felony convictions for President Donald TrumpDonald John TrumpTrump: I hope voters pay attention to Dem tactics amid Kavanaugh fight South Korea leader: North Korea agrees to take steps toward denuclearization Graham calls handling of Kavanaugh allegations 'a drive-by shooting' MORE’s former campaign chairman, felony guilty pleas for his former personal attorney, and compelled immunized testimony from the chief financial officer of his business organization. What received relatively little attention, in the news tornado that was moving faster than it could be analyzed, is Trump’s comment to Fox News that “flipping” a witness should “almost be illegal.” 

Yes, TV and press commentators explained that “flipping” is when a prosecutor offers a deal to one criminal to get him to testify against a bigger criminal … and the press pointed out that only crooks generally complain about flipping. But, what should have been said is that the president’s comment made current federal prosecutors break out in a cold sweat, former federal prosecutors glad they left DOJ, and dead federal prosecutors roll over in their graves.

In my nearly 25 years as a federal prosecutor at the Department of Justice in both Detroit and Los Angeles, the single most effective tool I used to develop cases against some of the biggest criminals in this country was “flipping,” otherwise known as “cooperating.” 

Contrary to the sleazy backroom deal implied by the president’s comments, cooperation plea agreements are in writing, have harsh penalty provisions if a cooperator does not tell the truth, and are always disclosed to jurors at trial so they can make their own conclusions about a cooperator’s credibility. 

People often ask: “Why would you give a better deal to a criminal?” No prosecutor wants to give a break to a criminal, but prosecutors recognize that many of the most dangerous criminals have risen to power either in gangs or criminal organizations where they direct lower-ranking criminals to do their dirty work. Without “flipping,” prosecutors would end up prosecuting the street dealer and not the international kilo supplier, the minion collecting money from the liquor store rather than the mob boss, and the flight school instructor rather than the terrorist. 

Jurors are understandably skeptical of cooperators. Convincing jurors not to disregard the testimony of a cooperator out of hand is, perhaps, the prosecutor’s single most difficult part of a trial. That task just got infinitely more difficult thanks to the president who wholesale trashed one of the most effective tools his own Department of Justice uses to fight crime. And, while President Trump cannot technically make the use of cooperators illegal, he could accomplish as much by squeezing his attorney general to prohibit the practice at DOJ. One policy memo from Jeff SessionsJefferson (Jeff) Beauregard SessionsSessions: DOJ concerned about suppression of free speech on college campuses Faith communities are mobilizing against Trump’s family separation policy Former FBI Deputy Director Andrew McCabe lands book deal MORE and the use of cooperating witnesses could come to an end. 

I can’t help but wonder if there is a reason the president publicly condemned this tried and true law enforcement formula for moving up the chain of criminal command. The president’s former national security adviser, former deputy campaign chairman, and former foreign policy adviser have already flipped. His former personal attorney is half-way off the griddle, ready to flip at any minute. 

One motivation for this scorched-earth attack on his own Department of Justice seems plausible: trying to turn public opinion against a practice that would surely be part of any investigation of him, his family, and members of his campaign. By publicly disparaging the use of cooperating witnesses, President Trump may be tainting the pool of potential jurors who might sit on any prosecution that arises from Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s probe or other investigations into Trump and those in his orbit.   

Donald Trump has a superpower. He is able, through blind repetition, to convince his base of anything. If he says it enough, they will believe it. And, if his repetition is combined with a nickname (“Crooked Hillary”) or a chant (“Drain the Swamp”), indoctrination moves at lightning speed and is immune to factual contradiction. If the one holdout juror, who blocked guilty verdicts across the board in the Paul Manafort case, taught us anything, it is that if you place a kernel of doubt in the mind of a single juror, the mountain of evidence means nothing.  

Candidate Trump rang the law-and-order bell more than an ice cream truck’s slow drive down Ozzie and Harriet’s street. It was one of the centerpiece themes of his campaign, which makes his effort to dismantle law and order policies all the more difficult to tolerate.

Before he was elected president, Mr. Trump told us that he would run this country like he ran his business. True to his word, Donald Trump is running the presidency of the United States exactly as he ran his business – protecting himself at all costs.

Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts.