President Trump tweeted that Michael Cohen, his former lawyer and “fixer”, won’t flip on him. Putting aside for the moment why the President would say this if Cohen didn’t have incriminating evidence against him – because one could only “flip” on someone if they did – let’s examine why people charged with crimes cooperate with law enforcement.

When someone is charged with a serious crime and the evidence is strong, rather than fighting the charge they may try to mitigate their exposure to a lengthy prison sentence by offering detailed information against their co-conspirators in an effort to win a downward departure motion at sentencing. In the federal system, where the U.S. Sentencing Guidelines often result in an advisory sentencing range of many years in prison – in addition to substantial fines, forfeiture and restitution – a defendant’s “substantial assistance” to the government against others often results in a substantially reduced sentence.

Substantial assistance means that the defendant provides detailed evidence against his co-conspirators in the scheme that can be corroborated by other evidence. Before being offered a cooperation agreement, the defendant is thoroughly debriefed by prosecutors and agents to determine whether he is being truthful and complete. The cooperator must provide useful information and potential testimony against others – what each co-conspirator did to advance the scheme – along with any physical evidence such as records, documents and the like, that substantiates what he says. The government usually wants a cooperating defendant to provide information about others that are just as culpable as him, or more so, meaning higher up in the criminal activity.

To cooperate or flip, the person must reveal all prior criminal activity he has been involved in over the course of his life, not just the current charged conduct. The reason for this is that the government must determine not only the person’s truthfulness, but also whether the person will be credible witness or be subject to potentially debilitating cross-examination based upon his prior offenses.

Given the potential for a lengthy sentence, and in the federal system there is no early release on parole that reduces the amount of time spent in prison as in many state systems, there is a strong incentive for defendants involved in complex, multi-defendant crimes to cooperate. Anyone involved in criminal conduct with someone who has been charged would be naïve at best to think that the person would never cooperate against them. Self-preservation and the hope of receiving no time or substantially less time is a very strong motivator, regardless of how close the defendant is to that person.

In Michael Cohen’s case, even if he decides to cooperate, the government must first decide whether his information is credible and valuable, whether it is against others that are worth offering Cohen a reduced sentence and whether and how much any of his prior potential criminal conduct will undermine his credibility. As for Cohen himself, he must decide whether any potential prior criminal conduct will expose him to additional charges and whether he has sufficient information and evidence to receive the benefit of that cooperation – no time in prison or a substantially reduced sentence.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.