Professor Bowman: The Influence of Substantial Assistance in Sentencing Defendants

In a recent op-ed in Slate, “The Reason Prosecutors Hammered Michael Cohen Despite His Cooperation With Robert Mueller,” Professor Frank Bowman examines the conflicting opinions of the U.S. Attorney’s Office for the Southern District of New York and Robert Mueller’s Special Counsel’s Office regarding the value of Cohen’s level of cooperation. According to Professor Bowman, the crux of the situation – and source of tension – falls heavily on Michael Cohen’s cooperation … or lack thereof.

Professor Bowman writes, “The real issue is that unless the cooperator is willing to talk about everything, the government can never be sure that it is getting the true story.” Bowman goes on to explain, “As a result, the government generally won’t have any dealings with a defendant who won’t agree to full cooperation.”

In Professor Bowman’s experience, he has never seen the government ask for sentencing consideration, or a “substantial assistance” motion unless the defendant agrees to full cooperation. He says that the government’s accelerated move to sentencing was an effort to maximize time-sensitive political considerations, and to “set-up a classic ‘good cop – bad cop’ squeeze.” Even with sentencing by the district court, Cohen could open up post-sentencing and cooperate fully with the special counsel. In so doing, it’s possible that the court could reduce the original sentence.