Potential Cooperators 31:56

Hello and welcome back to another episode of Prosecuting Donald Trump. So there are more and more reports, I stress the word reports, of people who may be cooperating with Jackson's investigation, i.e. Rudy Giuliani.

Mark Meadows and others who we're going to talk about. And so in addition to covering some of the news from last week related to the Miami grand jury, to former governor Ducey and pressure campaigns with respect to him, we wanted to really take a step back and talk about cooperating witnesses and thought this would be a really good time to talk

talk to you about how you on the inside, and especially in a case like this, go about obtaining a cooperating witness. I think it's going to make people a lot smarter about how they read what they're seeing in the news and understanding how to read the tea leaves. And especially I think how like Mary and I, when we read it, what we sort of take as a

a key event and what we sort of brush off as, well, that seems a little like two getting out over their skis. Anyway, that's sort of our plan for today. Mary, welcome back. Yes, good to be here. I think also this is a place where we'll talk about terms of art, right? Sometimes there are words that are used in sort of common parlance that have a very different meaning than

when it comes to lawyering and cooperators. Yeah, absolutely. So I think that's a great place to start. So

Why don't I start by talking about what a cooperating witness is? And then, Mary, it sounds like you want to talk about what it means to come in under a proffer agreement, what that is versus sort of cooperator. So first, a cooperator in a federal case like Jack Smith's case, whether we're talking about the Miami case or the ongoing investigation regarding January 6th, a cooperating witness is...

Typically, somebody who has come into the government, admitted their own wrongdoing and is completely truthful. And they usually have a written agreement with the government. And that can include pleading guilty to charges.

and admitting and taking responsibility for what they did. They may also, in that plea agreement, give a written statement of all the things they've done. And the benefit to them can be not just that they might get a better offer in terms of what they plead to, but the real benefit, particularly in a white-collar case, is that you say to them,

and this is in the written agreement, we will give the court all of this information when you are sentenced. In other words, not just the bad things you did, but all of the ways that you helped. Mary, you and I have done this a million times. There's many ways in which cooperation agreements work in different districts, but that's sort of the gist of what happens. It's also not always the case that a cooperator has to plead guilty to something, but that's typically what you want. It makes it a lot

easier to present that witness to a jury if you can say to the jury, hey, we prosecuted this person. He or she has accepted responsibility for what they did. The unwritten statement in that is unlike the defendant. You don't say that, obviously, because they have constitutional right not to do that, to actually go to trial. But you can say, here, this is a person who's accepted what they're doing. They're going to be sentenced by a judge, and the judge will decide

what sentence they should get. In fact, what you just said is so important about one of the benefits to a cooperating witness is knowing that the government will explain at the time of sentencing all of what's called the substantial assistance, right, that the cooperating witness provided to the government in its own investigation and prosecution. And that is actually a recognized basis for

for the judge to take into consideration in sentencing, including departing below what the sentencing guidelines might actually recommend for a particular sentencing range. Now, guidelines are just guidelines. They're not mandatory on the judges, but still, most judges start with what the guidelines are, and the government usually makes recommendations within what the U.S. sentencing guidelines recommend for any particular crime.

And substantial assistance through a cooperation agreement is a recognized basis for giving a lower sentence.

This is an area, though, before we get into details, and I want to talk a lot more about how you use this at trial and why it's useful, is this is an area where I think people can be confused because, as Andrew just said, we're using cooperating witness as someone who has their own culpability for potential criminal activity, someone who's knowing, gosh, in this investigation, I may end up getting charged. So I'm going to take the opportunity here to cooperate with the government personally.

officially either plead guilty, like Andrew said, or sometimes get an agreement that if you cooperate enough, you might not even be charged. But I want to go in. I want to cooperate with the government. It's not just like a witness, a percipient witness, a fact witness to a crime who doesn't have exposure saying, I'm being cooperative. I used to tell my students this, which is like somebody who sees a car crash on the street. They happen to just witness it.

That person could be, quote, cooperating, but they're just a witness. You don't really say they're a cooperating witness. A cooperating witness is somebody who, in the terms that we used to use it, is somebody who really has faith.

some culpability and was sort of involved in the scheme. And so you don't think of them as just a pure witness. They have their own exposure and there are all these issues about how to present them to a jury. You know, you've been focusing on white color, but a lot of people out in the community, a lot of listeners probably think of other types of crimes. I mean, this happens all the time in violent crime cases, gang cases. It works.

My old organized crime cases, you can't really prosecute an organized crime case without an insider or a cooperator. That's right. Exactly. By the way, one term of art is that, Mary, since you said that we're going to start educating people on terms of art. So we've talked about cooperation agreements. The letter that the government gives to the court

It's something that we typically say it's a 5K letter. That's right, the substantial assistance letter. And so people might hear about this, a 5K letter, a 5K letter, and you're like, what the hell is that? And 5K is a part of this sentencing guidelines that, Mary, you referred to. And so that's just taken on a life of its own where defense lawyers and prosecutors say, will that be in the 5K letter? Or that there was a 5K letter that said X, Y, and Z. And that's the letter that basically presents the good and the bad for an operating witness. Yeah.

Absolutely. So, Mary, do you want to talk a little bit about then a proffer agreement? Because one of the things that just drove me crazy this past week was reports where they said so-and-so may be cooperating because they came in and had a proffer agreement with the government. And I was just like, they're not the same thing. A proffer agreement is just not a corporation agreement. And it's

It's like jump the gun. And I didn't know if you wanted to talk about that and also explain why the proffer agreement is different than a cooperation agreement. So proffer agreements can take place at different times in an investigation. I think there was a lot of reporting last week about, oh, you know, this is always what happens. Breathless reporting. We must be almost toward the end. It must be time for an indictment because someone's coming in pursuant to a proffer agreement.

And that is pretty common as an investigation proceeds. If somebody here, let's just say Rudy Giuliani thinks, wow, I may be getting indicted. His lawyer is going to say, hello, hey, government prosecutor, can we come in and talk to you about what my client knows?

under a proffer agreement. And that's sometimes called a queen for a day agreement. And what that means, it's another one of these just terms of art that prosecutors have developed over the years, which basically is an agreement by which the person who is making a proffer, a proffer of what they know to the government,

It gets treated like a queen that day because the government says, we will not use anything you say during this session where you're coming in and talking to us voluntarily. We won't use any of this against you. If we're ever going to charge you, we have to use evidence we independently discovered through our own investigation, not based on what you said to us today. With one exception, which is you can't lie to us.

If you lie to us, we can use this to prove you were lying about something, et cetera. And so, as I said, that oftentimes will happen close to the end of an investigation. But sometimes, in my experience at least, Andrew, it happens way at the very beginning. If it becomes known that the government's investigation and they're investigating a particular person,

scheme, particularly in the white collar area. Someone who knows they're a target or at least a subject of that investigation sometimes waves their hand way early and says, let us come in right now and talk to you pursuant to this proffer.

Yeah, absolutely. So, you know, I've done a lot of what are long-term white-collar investigations, whether it's Enron that went on for over three years or the special counsel Mueller investigation. And there, it's very well known that, as you said, Mary, that there is that investigation. So, proffer agreements are so common. I mean, it's...

sometimes it's a defense lawyer just being careful, saying like, hey, why not get it? And we want to hear from the person because they may be in the category of a pure witness. They may be somebody who has a little bit of liability. The defense lawyer may not know which category they're in. So,

It's just not a big deal to give out a, quote, proffer agreement. So it's not a precursor to a cooperation agreement. It is true that a cooperation agreement frequently has somebody come in and proffers beforehand, but that is a very small subset.

of the people who come in under a proffer agreement. So the fact that you hear about someone coming in under a proffer agreement isn't something where you should go, night follows the day, this is what it means. And this person's going to end up being a cooperator. That's not necessarily the case. Exactly. So one of the things, when I think about Enron and the Mueller investigation, I think about the pressures on Jack Smith in terms of cooperators. I thought about the pressures...

that we had in those situations to get cooperators. And one of the downsides of a very public national investigation is, particularly in an economic crime case, unlike a gang case, like an organized crime case, is the people you're dealing with are generally

people who think of themselves as reputable, to say they did something wrong and to say, I'm going to accept responsibility, they're falling from high to low. They have usually lied to their family, their friends, to themselves about what happened. Whereas in an organized crime case,

There are all sorts of challenges in getting someone to cooperate because obviously if you don't have a lot of leverage on them and haven't built a case, usually an organized crime figure is not raising their hand saying, hey, you know what? I'm willing to be a cooperator and suffer potentially getting killed from my gang members. But there isn't the...

of having to stand up in court and say I did something wrong because they know they did stuff that's wrong. And the idea of it happening on a national stage makes it that much harder because you're not just admitting it to your family, your friends, yourself, but it's going to be splattered all over, like what I say is the New York Times or the Washington Post or in this case, all over the globe. Yeah.

So it's really, really hard. And then the other, which we had to face not in Enron, but in the Mueller investigation, was when you're trying to get somebody to cooperate, you're talking about how they're otherwise going to get prosecuted.

But if the target, let's say it's Donald Trump, has the power when he was the then president, he had the power to pardon. And so we had to sort of overcome that because people are thinking, well, if I don't cooperate, I may still get pardoned. Paul Manafort made that calculus. And so here we sort of have that coming up.

because somebody could be saying, well, it's not sure that he's going to become president again, but either he or another Republican might become president and I may get pardoned. They may do what Donald Trump did, which is Donald Trump completely gutted the Mueller investigation by sort of pardoning everyone but cooperators. And so it makes it harder to

get a cooperating witness. And so you know that is something that's going on in Rudy Giuliani's mind, in Mark Meadows' mind, is...

not just the opprobrium of, I was the former mayor of New York City, I was the former U.S. attorney in the Southern District of New York, and now I'm going to be pleading to a felony, or I'm going to at least have to say under oath in a courtroom, I did something wrong, the W word, wrong. And Mark Meadows, the same. It's like, it's a big deal. And they, so there, it's really a question of how much proof does the government have? And then how much can they really impress on these people? Yeah.

the prospect that you may be betting your entire future on a pardon that may never come. Well, and I think, you know, that's that you're absolutely right. And I agree with that. I think in this investigation, too, and maybe this is why so many commentators have been, you know, breathlessly saying we must be coming toward the end is because, you know, here, I think at least for the first many months of this, people may have been thinking, well,

I just don't know that DOJ will bring a case like this. And so why would I want to step out front really early and offer to cooperate and potentially plead guilty to something when there may be no charges? And then I'd be hanging out there on a limb having pled guilty or made an agreement to plead guilty, and there's ultimately no big indictment that comes. So a whole other calculus there. Yeah.

I think we should also talk a little bit about the government side of this, right? I mean, you've been mentioning Rudy Giuliani. Now, I don't know about you, Andrew, but I don't think he's probably a very credible witness. And so when the government...

decides, and I don't know if this was instigated by the government or by Mr. Giuliani's own attorneys, because it can go either way. It can be the government said, hey, just letting you know you're a subject of our investigation. Would you like to come talk to us? That happens. But often it also happens that a defense attorney will say, hey, government, my client would like to make a proffer. And I'm not sure which happened here. All we've heard is that it was entirely voluntary, according to Mr. Giuliani's attorneys. But were I the government, I would definitely want to listen to him

I definitely want to have him come in and do that profit agreement. But whether I would ever want to enter a cooperation agreement and put that man who has lied through his teeth over and over and over and over again about the 2020 election, that really would depend on how much he had to say,

was substantially corroborated by other independent evidence. Yeah. So I totally agree. When you're in the government, when you decide a person should be a cooperating witness, one, you have to believe them completely. Right.

Two, you have to make an assessment that they will be believed and you have enough corroboration that they're going to be credible on the stand and you can present them and they're worth it because they are going to, at the end of the day, get a lower sentence than they would otherwise deserve as opposed to just going ahead and prosecuting them. But to be clear, there are lots of people who have

A lot of so-called baggage. Another term of art. Another term of art, yes. Right. Michael Cohen might be like the perfect poster child for somebody who has baggage and keeps creating the baggage when he goes on air. Stephanie, this is where you and I just think so much alike, I think, because I was going to say that one of the, I think, the real downsides for cooperating somebody like Rudy Giuliani and Mark Meadows is if they come in and do a proffer thing,

They have to say the W word. They have to say they did something wrong. Otherwise, if you get a sort of half-baked cooperator who wants to sort of play it both sides against the middle and say, oh, I'm going to tell you how I was lied to. I'm going to put myself like a Mr. Corcoran. I'm going to tell you how I was lied to by other people. So yes, what I said was false, but it wasn't no only false.

That could really hurt the government if you buy that pig in a poke. Because you are then putting somebody on the stand who Donald Trump gets to say, hey, I'm no different than them. I also was lied to. I believed what was being said because the kinds of defenses in these cases are either you were lied on counsel.

Or I didn't know all the facts. I didn't know what was happening. So the one reason the documents case is so strong, at least on paper, is because you don't have a reliance on counsel. In fact, you have lawyers saying, don't do this. And you have Donald Trump being right in the middle of things. He was in the boxes. So that's great for that case. But on January 6th, you want to be able to say,

He knew that this was false. He wasn't relying on lawyers. He wasn't relying on some data in good faith. Even if it was wrong, he just had a good faith belief. So it's really important if you're going to cooperate with somebody like Mark Meadows or really Giuliani that you understand that they have to own their liability and they can't skirt around this issue. Because if you do allow that,

And you have some question about whether that's actually the truth. You are really creating a witness for the defense. That's right. If you go forward with a half-baked cooperative. And actually, that's the last point I want to make before we move on is that

The defense gets to use all of this, right? The government can't enter a cooperation agreement and keep it secret. It's one of the things the government has to provide to the defense. There have been other episodes where we've talked about Brady information, which means exculpatory information, or Giglio information, which means unlawful.

information that could be used to impeach the credibility of a witness. And the fact that a witness is testifying because they expect a benefit to themselves through a cooperation agreement is the classic impeaching information. So the defense will have every cooperation agreement and also everything else the government knows that could be used either to impeach that witness or to try to show that whoever's charged in the case of Mar-a-Lago, Mr. Trump, to show that he

is not guilty. And that's another thing the government has to think about when they're entering these. That's going to be part of the baggage that this person is cooperating because they expect to be treated more favorably. They're getting something for that. They're getting a deal. Yeah. So Mary, I think this is so great that we spent some time

sort of teasing this out because it's going to pay a lot of dividends as this goes forward, as we start hearing about proffer agreements and people who are potentially cooperating as it's happened. I think we're going to hear more of that. So I think we're trying to give people the tools to better analyze what that is. More prosecuting Donald Trump, potential cooperators in just a moment.

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And now, all MSNBC original podcasts are available ad-free and with bonus content, including How to Win 2024, Prosecuting Donald Trump, Why Is This Happening?, and more. Subscribe to MSNBC Premium on Apple Podcasts. This is a really good place, I think, to move on to the news about what I would call a pure witness, as opposed to somebody with potential liability, which is that, surprise, surprise,

The former president didn't just reach out to Raffensperger in Georgia, but we're now hearing that in addition to reaching out to Rusty Bowers... The former Speaker of the House in Arizona. Exactly. It's so funny because I'm just like, don't we all know every single cast of characters? Right. No. But he also reached out to former Governor Ducey. So, Mary, tell us...

what you understand about that, but also what your take was on the reporting on that. Right. So this just shows, with respect to the January 6th investigation, right, that Jack Smith is trying to paint a whole picture of the scheme that led to January 6th. Now, we don't know yet if Jack Smith has talked to former Arizona Governor Ducey, but we did hear New Washington Post reporting, as you indicated, that

Former President Trump did reach out to Governor Ducey before January 6th to put that same sort of pressure on him to try to get him to...

do more investigating into alleged fraud, and essentially override the will of the Arizona voters. Because in almost every state, it's the governor who certifies the results of the electoral ballot. And the electoral college ballots in every state are driven by the popular vote of the state. That's what the agreements that they've come to in each state be called.

either via their state constitutions or state statutes. And so essentially what we've seen reported is that Mr. Trump reached out to Governor Ducey really to try to put the pressure on him to decertify the votes for President Biden and instead replace those with votes

for Mr. Trump. Now, we don't know that exact level of detail, but what's been reported by those who are alleged to have talked with former Governor Ducey or have been aware of the conversation that he had with Mr. Trump have indicated that. That's very much like Mr. Trump reaching out to the current Secretary of State Brad Raffensperger in Georgia to

after the election saying, can't you just find those 11,700 and whatever it was votes? That's all I need. And again, trying to suggest that if the secretary of state there could say, hey, this election really was won in a popular vote by Trump, that would have overruled and reversed the results in Georgia. And these things are part of the bigger scheme to override the will of the people and

bring this election to Mr. Trump instead of Joe Biden, the actual winner. This is part of what drove the fraudulent electors scheme. This is the scheme to go ahead and have the Trump electors, as I think we talked about last week, go ahead and meet and vote on the day the electoral college votes, December 14th is what it was in 2020, and cast their ballots for Trump

Even though he hadn't won in those seven swing states, it was then the pressure for those legislatures and governors in those states to accept those Trump electors and not the legitimate electors. And then ultimately, right, it was pressure on Mike Pence ultimately.

on January 6th to accept those fraudulent electors. And that's actually where another potential cooperator comes in, Michael Roman, who was the director of election day operations for Trump and was very, very instrumental. So it's been reported in communicating with state legislators and state officials about this effort to overthrow the results. Yeah. And he, Michael Roman is

may be a cooperating witness in that category because he has exposure, at least potential exposure. Whereas Ducey and Raffensperger and Rusty Bowers, all are people who are victims, actually. They're the recipients of the pressure

Mike Pence, same thing. And one of the things that I think was important about the Ducey reporting, if the case goes forward, which I think it will, it helps with the defense argument of like, why would I just do it here? Why isn't there more of a concerted plan if I really was trying to overthrow the election? And it's like, well, guess what? There was a

because you were actually looking at all the levers of power and trying to go after them. For instance, in Arizona, when the governor didn't do your bidding, you went to Rusty Bowers in the state legislature to try and get him to do your bidding.

Also, you know, one of the things that I'm so interested in is that when I listen to the Raffensperger tape recording, and I'll be interested to see whether this is developed in other places, is, of course, it's incredibly damning and useful to see he says, I want one more vote than a lost buy vote.

But it's his threatening Ravensburger with criminal prosecutions, which, by the way, as criminal prosecutors, we know that's absurd. I mean, because all he has to have is a good faith belief that this didn't happen. He's not committing a crime. But to me, it was the combination of those two things that makes the tape so damning. And so it'll be interesting to see whether that's what...

Jack develops. And frankly, this is when we say develops, or at least I do in the future tense, but he may have that already in the bag and know all of this. He may.

And we haven't, and we'll save this for another day, but we haven't talked explicitly about the potential charges related to January 6th. And when I mentioned earlier painting this bigger picture, that doesn't mean there's going to be a hundred charges if there are any charges. But what I expect if there are charges is that they're going to be conspiracy charges, conspiracy to defraud the US government, conspiracy to obstruct an official proceeding. And when you

have a conspiracy, just like in the conspiracy that's charged in Mar-a-Lago, you want to tell that whole story, even if you don't then pick apart every individual charge that you could bring. And that's why the pressure on the state governors and secretaries of state and legislators is such an important piece of the January 6th investigation.

So this idea of additional charges is a great segue to some other reporting. So Mary, it's as if you knew what our next topic was. That's the only thing we do plan. Let's cover three things. And then we get down to almost no time and we're like, oh, there's that third thing. Yeah. So the third thing that we wanted to talk about was

I hate to use the phrase like nothing burger, but there was reporting that Jack Smith is continuing to issue grand jury subpoenas out of the Miami grand jury, the location where he had done the investigation into the documents case. Just quick law points for people.

Once you've indicted a case, if you want to continue using the grand jury, you can, but you cannot use the grand jury just to gather evidence for trial. You have to have a real belief that you are either developing new evidence against existing defendants with respect to new charges as to the existing defendants, or you're

you are looking at new defendants. So it's got to be one or the other, and of course it could be both. Otherwise it would be a misuse of the grand jury, right? To just use them to keep sending subpoenas just to help prepare for trial. Nope, once you've indicted, you're done, unless one of those two exceptions applies. Right. Now those exceptions are huge because it's very often that you do have

additional defendants you're considering and also additional charges. Here, my tea leaf reading, I don't know what you think, Mary, is although it's possible they're considering and looking at additional charges with respect to the two existing defendants, meaning Trump and Nauta,

I find that maybe a little less likely here because Jack Smith made such a big point of wanting a fast trial date, and he's already told the judge that he wants a date in December. If you are thinking of bringing additional charges in what's also another term of art, a superseding indictment, which just means another indictment, but it supersedes the prior one, it's really hard to say you want a fast trial because the judge is going to be like, okay, wait, when are you done?

I want to set a trial date when I know what the last indictment is that you're ready to go on. So it suggests to me that they may be looking at additional people. That's not a 100%, but it just, if I were betting, I would sort of think that.

Yeah, I think that's a good speculation. Although there's another speculation. It's all that educated speculation at this point, Mary, because we're no longer on the inside. I know it. I know it. It's tough sometimes. The other possibility is that they're developing evidence of dissemination at Mar-a-Lago.

because the two examples of dissemination in the indictment both occurred in Bedminster. I know that there was a former Trump spokesperson, I think, who appeared on MSNBC over the weekend who said she knew that Trump had shown documents to people sometimes at the patio dining facility at Mar-a-Lago. So who knows? It could be something. But again, that would be

new evidence for additional charges, not for the existing charges. So again, that's even more speculative, I think, than what you are suggesting, but it is something new I did hear about, and it's certainly a possibility. Yeah, absolutely. I mean, it's the kind of thing where also something may fall into their lap. Sometimes you really don't anticipate it. And that's actually one of the benefits of doing a case that's very much in the news, which is

sometimes people do come forward or leads come forward or investigative reporters come up with leads that you hadn't expected. I know that happened in Enron. It happened in the Mueller investigation. There aren't a lot of benefits for doing a high-profile case, but that at least is one of them. That's definitely a to-be-continued to see what happens there. There's no end of things to cover, but I'm really happy this week that we got a chance to take at least a little step back from the fire hose of...

Trump news to talk about how we're seeing things in the most important area, which is cooperating witnesses. Right. And, you know, in two days, Mr. Trump has to respond to Jack Smith's suggestion of December 11th as a trial date. So we will see what he says. We'll be able to talk about that next week.

Absolutely. And has Mr. Natta even got his full counsel yet? I don't think so. No. I'd hate to see that delay everything. Goodness gracious. Talk about a tail and a dog. Right, right. The trial could be separated if that were an issue. And there could be a trial that goes against Mr. Trump and a later trial against Mr. Natta. So people shouldn't fret too much about that. We're not there yet. I would hope that even Judge Cannon isn't going to allow that. Right. Okay. Talk to you soon, Mary. Yep. Until next week.

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