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December 7, 2018

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

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 noted in this prior post, late last Friday, Cohen's lawyers filed this 30-page sentencing memorandum making a plea for leniency and a sentence of "time-served and restitution to the IRS."  Today it was time for federal prosecutors to weigh in, and the Acting US Attorney for the Southern District of New York has now delivered this 40-page government sentencing memorandum making a case for a "substantial prison term."  Here is this latest filing's preliminary statement:

Defendant Michael Cohen is scheduled to be sentenced on December 12, 2018. The United States Attorney’s Office for the Southern District of New York (the “Office”) respectfully submits this memorandum in connection with that sentencing and in response to the defendant’s sentencing memorandum dated November 30, 2018 (“Def. Mem.”). 

Cohen, an attorney and businessman, committed four distinct federal crimes over a period of several years.  He was motivated to do so by personal greed, and repeatedly used his power and influence for deceptive ends. Now he seeks extraordinary leniency — a sentence of no jail time — based principally on his rose-colored view of the seriousness of the crimes; his claims to a sympathetic personal history; and his provision of certain information to law enforcement. But the crimes committed by Cohen were more serious than his submission allows and were marked by a pattern of deception that permeated his professional life (and was evidently hidden from the friends and family members who wrote on his behalf).

Cohen did provide information to law enforcement, including information that assisted the Special Counsel’s Office (“SCO”) in ongoing matters, as described in the SCO’s memorandum to the Court, and the Office agrees that this is a factor to be considered by the Court pursuant to Title 18, United States Code, Section 3553(a).  But Cohen’s description of those efforts is overstated in some respects and incomplete in others.  To be clear: Cohen does not have a cooperation agreement and is not receiving a Section 5K1.1 letter either from this Office or the SCO, and therefore is not properly described as a “cooperating witness,” as that term is commonly used in this District.

As set forth in the Probation Department’s Presentence Investigation Report (“PSR”), the applicable United States Sentencing Guidelines (“Guidelines”) range is 51 to 63 months’ imprisonment.  This range reflects Cohen’s extensive, deliberate, and serious criminal conduct, and this Office submits that a substantial prison term is required to vindicate the purposes and principles of sentencing as set forth in Section 3553(a).  And while the Office agrees that Cohen should receive credit for his assistance in the SCO investigation, that credit should not approximate the credit a traditional cooperating witness would receive, given, among other reasons, Cohen’s affirmative decision not to become one.  For these reasons, the Office respectfully requests that this Court impose a substantial term of imprisonment, one that reflects a modest downward variance from the applicable Guidelines range.

Prior related posts:

UPDATE:  My posting above initially failed to note that there big sentencing memo linked above came from the Southern District of New York.  I have clarified this above because there was another filing from the Special Counsel's Office to address Cohen's offense of lying to Congress.  This SCO sentencing filing runs only seven pages, and it paints Cohen in a somewhat better light, concluding this way:

The defendant’s crime was serious, both in terms of the underlying conduct and its effect on multiple government investigations.  The sentence imposed should reflect the fact that lying to federal investigators has real consequences, especially where the defendant lied to investigators about critical facts, in an investigation of national importance.

However, the defendant has made substantial and significant efforts to remediate his misconduct, accept responsibility for his actions, and assist the SCO’s investigation. Accordingly, the Government respectfully submits that the Court should give due consideration to the defendant’s efforts set forth above and that it would be appropriate to allow the defendant to serve any sentence imposed in this case concurrently with any sentence imposed in United States v. Cohen, 18-cr-602 (WHP).

December 7, 2018 at 05:38 PM | Permalink


Cohen's scum, and turning on client--weak.

Hammer him.

Speaking of scum: https://www.msn.com/en-us/news/politics/ocasio-cortez-fires-back-at-trump-jr-keep-trolling-we-have-subpoena-power-next-year/ar-BBQEaIW

Speak out about Congress-critters, and they threaten you with a subpoena. AOC is un-American.

Posted by: federalist | Dec 7, 2018 8:06:47 PM

I have been wondering how long it would take, partisan federalist, for you to start using this forum to bash AOC.

If you are interested in talking about Congress, let's stick with sentencing topics and current members as I continue to want to know whether you support Senator McConnell's refusal so far to bring up the FIRST STEP Act for a floor vote as it now clearly has 80+ Senators supporting it and eager to vote on it.

Posted by: Doug B. | Dec 7, 2018 8:19:42 PM

I think the "campaign finance" part is BS. It should not be a crime to pay anyone not to talk about legal conduct (such as an affair). And obviously you can't pay hush money without it being secret. The Supreme Court has found a right to privacy in the Constitution. If there was ever a case for that, this is it. I believed that when John Edwards did it, and I believe it now.

The rest of it makes sense to me, from the Gov't point of view.

Posted by: William Jockusch | Dec 7, 2018 9:50:39 PM


Here's something for you to post on--Doug.

Posted by: federalist | Dec 8, 2018 7:51:18 AM

Doug, do you agree that Congresspeople should threaten citizens with subpoenas over what they say?

Posted by: federalist | Dec 8, 2018 8:01:02 AM

That is a great link, federalist, and I do not like when anybody threatens anyone based on speech; it is especially troublesome when a threat comes from an elected official. (AOC is technically not yet a member of Congress, but that gets her no pass in my book.). And I am always rooting for there to be political consequences for politician who say misguided things on Twitter.

Back to current members of Congress: do you approve of McConnell blocking a vote on a bill with supermajority support in both houses of Congress and the support of the Prez?

Posted by: Doug B. | Dec 8, 2018 10:24:13 AM

If I were the judge, I'd give Cohen 3 years.

Posted by: career AFPD | Dec 8, 2018 10:39:50 AM

Nice Doug---since she is a rockstar in the Dem party, what does it say about the party as a whole?

Posted by: federalist | Dec 8, 2018 11:16:22 AM

Donald J. Trump is a rockstar in the GOP, federalist, and there is indisputable evidence that he lies constantly, bullies aggressively, engages persons seemingly eager to violate the law for various purposes and/or at his behest, and there is mounting evidence that he has himself committed various crimes. What does that say about the party as a whole?

Are you still sticking to your claims that Prez Trump is likely to be a more moral Prez than was Prez Obama?

Meanwhile, back on topic, if AOC were ever the leader of the Senate, I am pretty confident I would criticize her if she were to block a vote on a bill with super-majority support in both houses of Congress and the support of the Prez. Are you prepared to criticize the current Senate leader for this action (which is far more consequential than a AOC tweet)? Are you going to address this matter at all in the wake of you apparent prior praise of McConnell in this forum for the way he has so far thwarted to will of a super-majority of our elected representatives?

Posted by: Doug B | Dec 8, 2018 11:56:02 AM

Federalist, will you not concede that that this administration is the most corrupt in the history of the United States?

Posted by: anon1 | Dec 8, 2018 12:22:16 PM

anon1, I'm afraid that so far we've just seen the tip of the iceberg with respect to corruption.
The greater bulk is still underwater, but it's moving towards us inexorably.

Posted by: Michael Levine | Dec 8, 2018 12:25:45 PM

I/m good with Mitch.

Anon--the Logan Act setup is among the most corrupt acts in US history.

Posted by: federalist | Dec 8, 2018 2:31:11 PM

Your terse comment here, federalist, reinforces what many of your comments suggest: your partisan/policy commitments generally matter more to you than any concerns for democratic values or even rule of law values. Of course, other partisans have the same kind of priorities, and that is why I sometimes call you partisan federalist.

I remain interested in assessing whether and how much your partisan/policy commitments inform your moral judgments. Ergo, I will ask again: Are you still sticking to your claims that Prez Trump is likely to be a more moral Prez than was Prez Obama?

Posted by: Doug B | Dec 8, 2018 3:11:57 PM

Federalist, like all Trumpites, is in deep denial.

Posted by: anon1 | Dec 9, 2018 11:49:06 AM

By MARTIN MATISHAK 12/09/2018 12:16 PM EST

Rep. Adam Schiff (D-Calif.) on Sunday said President Donald Trump could spend time in jail once he leaves the White House. "My takeaway is there's a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him. That he may be the first president in quite some time to face the real prospect of jail time," Schiff, a former prosecutor and the incoming chairman of the House Intelligence Committee, said on "Face the Nation" on CBS.

The suggestion comes after federal prosecutors on Friday said Michael Cohen, Trump's former personal attorney, was directed by Trump in 2016 to make hush money payments to two women who claimed affairs with Trump, who was then a candidate for the Oval Office. The statement came in a memo that suggested Cohen serve a “substantial” prison sentence of 51 to 63 months.

"We have been discussing the issue of pardons that the president may offer to people or dangle in front of people," said Schiff. "The bigger pardon question may come down the road as the next president has to determine whether to pardon Donald Trump."

Posted by: Dave from Texas | Dec 9, 2018 7:59:01 PM

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