By Sara Kropf
Back in September 2018, I wrote about how Michael Cohen was pleading guilty without the benefit of a cooperation agreement. I said that it was possible that the government would later file a Rule 35 motion, seeking a reduction in his sentence based on his later cooperation.
I was about half right.
On December 11, 2019, Mr. Cohen filed a Rule 35 motion himself. He seeks a reduction of his 36-month sentence to a year-and-a-day sentence (or home confinement) or a hearing to “explore, evaluate and quantify the cooperation which Defendant Michael Cohen provided the United States Government.”
The affidavits provided with the motion reveal what white-collar (and non-white-collar) criminal defense lawyers already know: there is no bargaining power when you are a cooperating defendant.
It’s easy to get distracted by the rather colorful affidavit in support of the motion filed by Mr. Cohen’s lawyer, Roger Adler. It’s an entertaining read and devoid of the legalese that peppers typical briefs.
I was struck by how this case—unusual as it is—is truly indicative of how little bargaining power a cooperating defendant has against DOJ. It’s not a fair fight.
Rule 35 Requires a Motion by the Government—Not the Defendant
First, the basics. If you don’t get a sentencing reduction through the Guidelines (namely, the substantial assistance provision in §5K1.1), another way to reduce a sentence is to convince the government to file a Rule 35(b) motion.
Rule 35(b) provides
(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.
A Rule 35(b) motion is particularly helpful when a defendant has provided a lot of assistance after his sentencing.
Filing a Rule 35(b) motion is in the near-complete discretion of the government. A defendant can beg for one and provide lots of cooperation and assistance, yet DOJ can simply say no.
So, the first problem for Mr. Cohen is a legal one: Rule 35(b) expressly provides that it is triggered “[u]pon the government’s motion.” The government didn’t file this motion; Mr. Cohen did.
The (Very) Limited Exception to the Government’s Rule 35 Discretion
There is a very limited way by which a defendant can force the government’s hand. The government cannot refuse to seek a Rule 35 motion for constitutionally-improper purposes. For example, the government cannot refuse such a motion because of the defendant’ race or gender.
The Supreme Court in Wade v. United States, 504 U.S. 181 (1992), limited the government’s discretion under §5K1.1 and § 3553 in this way. Wade explained that the government’s “discretion when exercising that power is subject to constitutional limitations.” Id. at 185. Therefore, federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to impose a remedy if that refusal was based on a motive that is unconstitutional. Courts of Appeals, including the Second Circuit, have applied that reasoning to Rule 35(b). United States v. Scarpa, 861 F.3d 59 (2d Cir. 2017).
The problem for Mr. Cohen that this is a rigorous standard and for good reason: The courts do not want to be in the position of second guessing an executive branch agency’s discretion. It would set a very dangerous precedent to do so.
Mr. Cohen’s basic point is that DOJ, through AG William Barr, is beholden to President Trump and DOJ’s decision not to file a Rule 35 motion was based on an improper motive to protect the President at the expense of Mr. Cohen.
Mr. Cohen proposes a conspiracy theory, though it’s not an entirely crazy one in my view. Mr. Cohen says that the government refused to file a Rule 35 motion
because his testimony leads down a pathway to a possible indictment of (a) the President, (b) the Trump Organization, (c) the Trump Foundation, (d) Trump family members and (e) Trump Organization enablers.
Mr. Cohen doesn’t stop at attacking DOJ and the AG. He goes right after the AUSA in charge of his case, saying that Thomas McKay had a “powerful animus” against him. He claims that Mr. McKay has “a personal prosecutorial view which had no discernible interest in aggressive pursuing possible evidence.” He points to the fact that Mr. McKay entered into non-prosecution agreements with Trump Organization CFO Alan Weisselberg and the National Enquirer’s David Pecker.
I have no idea if Mr. McKay hates Mr. Cohen. But I can pretty much guarantee that Mr. McKay did not make the decision alone not to file a Rule 35(b) motion here. That decision went above him, and likely all the way to the top of the office,given the high-profile nature of this case.
10 Full Weeks of Cooperation = No Benefit
According to an affidavit by another of Mr. Cohen’s lawyers, Mr. Cohen spent upwards of 400 hours providing assistance to the government. He met seven times with the Office of Special Counsel, he testified before the House Oversight Committee and so forth.
This is a lot of cooperation. In a smaller case, there may be just one or two proffer sessions lasting a few hours.
Four hundred hours is 10 full time weeks of work. Two-and-a-half months spent doing nothing more than cooperating. It’s no wonder that Mr. Cohen is frustrated that the government has refused to give him any credit for it.
Mr. Cohen explains that he participated in many proffer sessions and that they were very helpful to the government:
To listen to Michael Cohen at a proffer session is to open a door to a veritable Trump Organization “snake pit,” which will, of necessity, require “Main Justice,” to paraphrase then Mayor David Dinkins’ criticism in a memorable New York Post headline – “Dave, do something” (referring to the Crown Heights riots after Norman Rosenbaum’s brother was killed by Lemrick Nelson).
One of the affidavits recounts conversations between defense counsel and Mr. McKay and suggests that Mr. McKay told them that Mr. Cohen had not been credible in his interviews:
AUSA McKay generally stated that Mr. Cohen’s assistance was “substantial” only to the extent that he was a credible witness and that his office believed Mr. Cohen (and/or his unidentified surrogates) had made statements that “adversely affected” his credibility.
This is how it works in real life. As a criminal defendant, you can provide a lot of cooperation and much of it could be very helpful to the government. DOJ generally evaluates “helpfulness” based on whether the government is able to successfully convict or extract a plea deal from other defendant using that cooperation.
If, however, the government decides you weren’t entirely truthful in the cooperation, then all that cooperation is meaningless. The government has all of the power to decide whether it will seek a Rule 35(b) motion, subject to the very limited Wade-type exception.
Here, it doesn’t appear that DOJ made Mr. Cohen any promises to seek a Rule 35 motion. (If it had, I’m sure we would hear about it in this motion.) That’s not unusual. The governments wants to see if your cooperation is actually helpful before it decides to ask the court to reduce your sentence.
Mr. Cohen provided all that cooperation willingly—hoping and hoping and hoping (and maybe even expecting) that DOJ would find it useful enough to file a Rule 35 motion. Now that DOJ has decided not to file a motion, there’s not much Mr. Cohen can do. DOJ holds all the cards here.
Winning this motion will not be easy. From where Mr. Cohen is sitting (in federal prison), though, it can’t hurt to try.
Not that these are completely on point for your Cohen example, and the bar for a cooperating defendant is indeed high. Wanted to point out a few other ways some courts have limited the government’s discretion. FYI.
United States v. Leonti, 326 F.3d 1111, 1119 (9th Cir. 2003) (“[T]he government may rightfully decline to file a substantial assistance motion for any reason, so long as its decision is not  arbitrary,  based on an unconstitutional motive, or  made in bad faith [pursuant to a plea agreement].”
United States v. Woods, 533 Fed. Appx. 594 (6th Cir. 2013) (The district court’s denial of defendant’s motion to compel the government to file a Fed. R. Crim. P. 35(b) motion was vacated where it appeared that the court may have improperly failed to recognize that the government could not refuse to file a Rule 35(b) motion if it bargained away its discretion to do so, the colloquy between the federal prosecutor and defendant was too ambiguous to control the outcome of the case, and whether the government bargained away its discretion was an issue of fact that could be resolved with minimal discovery and a hearing.)
United States v. Martinez, 1995 U.S. Dist. LEXIS 6033, at *16-17 (C.D. Cal., Mar. 30, 1995) (holding that, in a case where an out-of-district AUSA promised a Rule 35(b) motion would be filed in exchange for the defendant’s substantial assistance, specific performance would be ordered due to
United States v. Hughes, 2018 U.S. Dist. LEXIS 80962, *19, 2018 WL 2214176 (ordering a hearing under the “bad faith” prong of Leonti, to establish whether “the Government [had reneged] on an agreement for downward departure[.]”).
Interesting and useful description of the Rule 35 in Mr. Cohen’s case. Thanks