Prez Trump's former lawyer, Michael Cohen, is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress. As detailed in prior posts linked below, Cohen is asking for "time served," while federal prosecutors seek a "substantial term of imprisonment" of around 3.5 years. This lengthy CNN commentary by Elie Honig, headlined "Why sentencing judge may not show Cohen 'mercy'," predicts that prosecutors are more likely to be happy with the outcome than Cohen. Here are excerpts:
First, what sentence is Judge William Pauley likely to impose? I've appeared in front of Judge Pauley in many cases. He is fair but tough. Lawyers and defendants often find him intimidating. He has administered tongue-lashings to many prosecutors (yes, including me), defense attorneys and litigants. He has a serious, formal demeanor on the bench....
In my experience, Judge Pauley is a stern sentencer, particularly where the defendant has exploited a position of authority and acted out of greed or arrogance. The SDNY prosecutors, clearly aware of this tendency, noted in its sentencing memo last week that Cohen, "an attorney and businessman ... was motivated to do so [commit crimes] by personal greed, and repeatedly used his power and influence for deceptive ends."
Judge Pauley can show mercy to a truly unfortunate or disadvantaged defendant, but he does not usually take kindly to abuse of power. Under the federal sentencing guidelines, the SDNY argues that Cohen faces a sentencing range of 51 to 63 months. The federal guidelines are based on a chart: one axis reflects the defendant's prior criminal history (for Cohen, none) while the other reflects the seriousness of the offenses (for Cohen, fairly serious -- offense level 24 out of a maximum of 43). The range is not binding but it is important. Judge Pauley must consider the range, but he can sentence within, above or below it at his discretion....
Judge Pauley likely will give Cohen some credit for providing useful information to Mueller, but almost certainly won't let Cohen walk, given the SDNY's tepid support for only a modest reduction....
The big question then is whether Cohen will continue cooperating after sentencing. Cohen vows in his sentencing memo that he will. However, once he has been sentenced, his incentive to cooperate diminishes.
There is a mechanism in the federal rules -- Rule 35 -- that permits the prosecutor to ask the judge for a reduced sentence if the defendant provides valuable cooperation after his original sentence was imposed. If Cohen receives a sentence that he simply cannot bear, he will be highly motivated to continue providing assistance to Mueller, and perhaps to come clean on previously undisclosed topics, in hopes of earning an eventual Rule 35 motion. Paradoxically then, the more time Cohen gets on Wednesday, the more likely he may be to cooperate fully with Mueller as the investigation builds to a crescendo.
The stakes on Wednesday undoubtedly will be high for Cohen and for his ability and incentive to cooperate moving forward. Cohen's future cooperation, in turn, will affect Mueller's ability to penetrate into the heart of corruption in the Trump campaign and the White House.
In a discussion with a member of the media, I predicted that Cohen would get a sentence in the 2.5 to 3 year range. I am incline to stick with that prediction for now, though I would like to hear reader predictions of what they Judge Pauley will do at sentencing or even recommendations as to what they think Judge Pauley should do at sentencing.
Prior related posts:
- Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
- Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair."
- Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress
- Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
- Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison
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