Federal Law Enforcement

Flipping Michael Cohen

By Harry Litman
Wednesday, May 16, 2018, 8:00 AM

A meme has taken hold that President Trump and his circle are comparable to a mafia family, with Trump himself as the “Don.”

In his memoir, “A Higher Loyalty,” former FBI director James Comey fleshes out the analogy. Comey, who made his name as a mob prosecutor, recognizes in Trump’s rule some key features of mafia life: ”The silent circle of assent. The boss in complete control. The loyalty oaths. The us-versus-them worldview. The lying about all things, large and small, in service to some code of loyalty that put the organization above morality and above the truth.”

And when Trump summoned him to dinner in January 2017 to insist on “loyalty” from him, Comey thought the demand “was like Sammy the Bull’s Cosa Nostra induction ceremony—with Trump in the role of the family boss, asking me if I have what it takes to be a ‘made man.’”

Trump’s advisers are reportedly concerned that this analogy will extend to the president’s relationship with his personal lawyer Michael Cohen, whom they speculate may become a cooperating witness against Trump now that the Justice Department has served multiple search warrants on Cohen’s office, residences, and electronic devices. “Michael will never stand up [for you],” Trump’s former legal adviser Jay Goldberg recalled telling the president after the raid on Cohen, in an interview with the Wall Street Journal; “The mob was broken by Sammy ‘The Bull’ Gravano caving in out of the prospect of a jail sentence.” The question is now whether the government will be able to “flip” Cohen into a cooperating witness, as famously it did in the case of Gravano—whose testimony helped finally nail the “Teflon Don,” John Gotti.

We don’t know the contours of the case against Cohen, and it’s far from clear how much of a connection, if any, there might be between Trump and the investigation into his personal lawyer. But the stakes may be very high for the president. If Trump were in the know about the hush agreement with Stormy Daniels, for example, he could potentially be subject to co-conspirator liability along with Cohen for any charges that might grow out of that episode, which could conceivably include wire fraud, bank fraud and election law violations. Then there’s the matter of the millions of dollars reportedly paid to Essential Consultants LLC, the company Cohen first set up to handle the Daniels payment, by corporations that seem to have been eager to purchase the services of the president’s lawyer. Another of Trump’s lawyers, Rudy Giuliani, has said that the president “had no knowledge” of Cohen’s corporate clients—but any hypothetical involvement or even knowledge on Trump’s part could seed questions about Trump’s potential liability as a co-conspirator with civil or criminal offenses by Cohen.

The Cohen investigation has generated an intense public conversation about how prosecutors typically flip potential witnesses, especially mob witnesses. This kind of work usually takes place out of the public eye—but given the newly intense public interest in this process of persuasion, it’s worth playing out how the government might hypothetically try to turn Cohen against Trump.

As a former assistant United States attorney and United States attorney, I know the playbook for trying to persuade a mafia lieutenant to cooperate with the government in the prosecution of the family head. Pittsburgh was the home to one of 24 traditional mob families, and my tenure overlapped with its dying days. I oversaw the FBI’s working of a very prominent mobster, who turned on the family and for years provided valuable information about his own and other organizations.

Flipping a potential mob witness is not, as current press coverage might suggest, a simple matter of letting the person know the length of the sentence he or she might be facing. Figures like Sammy the Bull typically have contempt for law enforcement and certainty that they will not betray the boss; they would rather, as Cohen once put it, “take a bullet” than finger their ex-leader from the witness stand.

For this sort of defendant, the adroit prosecutor must deploy a gradual and nuanced psychological campaign to wean them from a total identification with the family and its values, and a disgust at the mere thought of talking with the government. As John Gleeson, the prosecutor who led the prosecution of Gotti and flipped Sammy the Bull, told me, “It’s not something that happens instantly. The heart of it is convincing the would-be cooperator that there is no such thing as honor among thieves. If the tables were turned, the guy he’s reluctant to give up would throw him under the bus in a heartbeat.”

To be sure, the prospect of a long time in jail is a strong start. In fact, few people realize that it was the passage of long mandatory minimum sentences for drug crimes—justly controversial in other settings—that, in combination with the mobs’ ill-fated decision to go into the drug business in the first place, broke the back of organized crime. The refrain of the Sammy the Bulls of the world had been, “I can do a nickel standing on my head,” meaning they were more than willing to serve a five-year sentence and keep quiet. That calculus changed with ten- and 20-year sentences.

If Cohen faces a sentence, it will be driven by the amount of money at issue in his putative financial crimes. Given their possible number and magnitude, his exposure could potentially be very long—certainly long enough to deprive Cohen, by all accounts a family man, of seeing his children grow up.

But for Cohen to agree to flip, he’d likely need to undergo a gradual transition that permits him to feel justified in breaking the Trump camp version of the omerta, or code of silence. As Cohen has pledged, “I will always protect Mr. Trump.”And with the intense focus on the case, it is likely that prosecutors in the U.S. attorney’s office in the Southern District of New York would want to apply a soft touch and avoid possible charges from the president’s supporters of overbearing treatment.

Step one in that transition is the isolation of the lieutenant from the family and the daily social life, which usually consists largely of a lot of hanging out and killing time and not all that much actual criminal activity. That much seems already to have happened, notwithstanding that Cohen has yet to be arrested. The Times reported recently that Cohen has told associates that he feels isolated since the FBI search.

With the spell of daily connection to the family broken, the feds will seek to persuade the made man that the Don doesn’t esteem him—or worse—doesn’t even respect him. Here, again, Trump has provided the FBI and the New York prosecutors quite a lot of material to work with, should they need to. Cohen appears to have endured years of petty slights from his narcissistic boss. One such humiliation recently reported by the Wall Street Journal was Trump’s boorish speech at Cohen’s son’s bar mitzvah, when he arrived late and gave a speech telling guests he had only come because Cohen called him, his secretary and the Trump children begging Trump to attend.

Gleeson explains the common trope: “[The Don] had no problem using you or abusing you—and in fact that’s the main reason you’re sitting in that chair right now—so you shouldn’t feel bad about using him to lessen the damage to you and your family.”

Another important tool in the prosecutor’s toolbox is the exploitation of sibling rivalry in the family. We know that Cohen expected an important role in the Trump administration, perhaps even chief of staff, but found himself on the outside looking in. Cohen apparently bore particular resentment towards Paul Manafort and Corey Lewandowski for winning plum roles he coveted.

The Journal reports on a poignant conversation with Trump in November 2017 in which Cohen, marooned in New York, said, “Boss, I miss you so much. I wish I was down there with you. It’s really hard for me to be here.” At some point, perhaps, the poignancy will come home. Cohen might look in the mirror and see not a tough guy but a sap, and his supreme loyalty to Trump as not empowering but foolish. Perhaps he might even come to share or at least appreciate the revulsion Trump inspires in so many.

Then—not tomorrow, or next week, but in good time—Cohen’s emotional mindset might fall into line with his self-interest in avoiding a long prison sentence. And the stage may be set for the most loyal of the president’s men to tell all.