Michael Cohen Wanted to Partially Cooperate. Why Prosecutors Said No.

NEW YORK — Michael Cohen, President Donald Trump’s former fixer, always had a high self-regard for his ability to talk — or bully — his way out of challenging situations, whether acting on his own or on behalf of Trump.

So when federal prosecutors in the Southern District of New York began investigating Cohen, he seemed to undertake a brazen and risky legal strategy: offer enough information that it might prompt prosecutors to ask a judge for leniency for him — but nothing more about his or others’ activities.

On Friday, the prosecutors made clear that Cohen was less useful to their investigation because he would not fully cooperate, therefore he would not reap benefits, such as a government letter on his behalf.

They said Cohen had refused to sign a full cooperation agreement, the sort most people in the Southern District sign when agreeing to testify against their partners in crime. Under that sort of deal, witnesses must admit to every crime they have committed and offer any details concerning crimes by others, even ones the government did not know about.

“Cohen tried to bend the way cooperation works in the Southern District to his own will,” said Elie Honig, a former prosecutor in that district who negotiated dozens of cooperation deals. “He tried to offer only selective cooperation at his own choosing and he wanted a benefit for that.”

The prosecutors, in a sentencing memorandum to the judge, denounced Cohen, 52, as devious and greedy — and asked the court to show him only modest leniency, largely for helping the office of the special counsel, Robert Mueller, investigate Russian interference in the 2016 election.

Judge William H. Pauley III will weigh that recommendation when he sentences Cohen on Wednesday in two separate cases.

Cohen pleaded guilty in August to an array of campaign finance and business crimes brought by the Southern District prosecutors, and last month, he pleaded guilty to a charge of lying to Congress that Mueller had filed.

In his first plea, he made the startling revelation that Trump directed him to arrange illegal payments to two women who claimed they had affairs with Trump. The payments were intended to ward off a potential sex scandal that might threaten Trump’s chances of winning the White House in 2016.

Prosecutors wrote Friday that Cohen “acted in coordination with and at the direction” of Trump, which could implicate the president in a felony.

The prosecutors seemed to voice regret that Cohen had not signed a formal deal to assist their office. “Had Cohen actually cooperated, it could have been fruitful,” they wrote. But because he did not, the “inability to fully vet his criminal history and reliability impact his utility as a witness.”

The Southern District asked the judge Friday to impose a “substantial” sentence, of about four years, on Cohen. His lawyers, on Nov. 30, had recommended Cohen receive no prison time at all.

The lawyers explained that Cohen had forgone traditional cooperation — and the promise of a letter from prosecutors — because he felt that resulting investigations and trials would delay resolution of his case. They wrote that Cohen wanted to accept responsibility for his crimes, bear any punishment he receives and move on with his life.

In seeking leniency, the lawyers noted Cohen had met voluntarily seven times with Mueller’s office, also without a formal deal.

Mueller’s office asserted in a letter to the judge on Friday that Cohen had “gone to significant lengths to assist the special counsel’s investigation.” It said he had provided Mueller with information about his own conduct and that of others “on core topics under investigation.” The office asked for some leniency when Cohen is sentenced.

Cohen met twice with the Southern District prosecutors after his first guilty plea on Aug. 21, and he willingly discussed the roles of other people — just not himself — in the campaign finance crimes to which he had already pleaded guilty, the office said in its memorandum.

Cohen also told the prosecutors through his lawyers that he was considering whether to fully cooperate with their investigation, the Southern District said in the document. Later, Cohen decided against making such a deal.

The prosecutors said that during their meetings with Cohen, he was “forthright and credible,” and that he had potentially “useful information about matters relating to ongoing investigations being carried out by this office.”

But Cohen “specifically declined to be debriefed on other uncharged criminal conduct, if any, in his past,” the prosecutors wrote. He also “declined to meet with the office about other areas of investigative interest.”

“In order to successfully cooperate with this office,” the prosecutors said, “witnesses must undergo full debriefings that encompass their entire criminal history, as well as any and all information they possess about crimes committed by both themselves and others.”

That process allows prosecutors to “fully assess the candor, culpability and complications attendant to any potential cooperator, and results in cooperating witnesses who, having accepted full responsibility for any and all misconduct, are credible to law enforcement and, hopefully, to judges and juries.”

By not pursuing this process, the prosecutors wrote, “Cohen’s efforts thus fell well short of cooperation,” and as a result, he was not offered a deal. Jessica A. Roth, a former Southern District prosecutor who teaches at Benjamin N. Cardozo School of Law at Yeshiva University, said full cooperation is extensive and demanding in the Southern District. “It’s a soul-searching process in which you’re being asked to come clean about everything,” she said.

“It’s an all or nothing affair,” added Berit Berger, executive director of the Center for the Advancement of Public Integrity, at Columbia Law School.

Cohen’s lawyers, Guy Petrillo and Amy Lester, pointed out in their sentencing memorandum that Cohen had helped Mueller at a time when Trump was making repeated, strident attacks on the special counsel’s inquiry, calling it “a witch hunt.” They made a virtue of the fact that Cohen was not angling for a pardon from the president, but had made himself available to prosecutors and put his fate in the judge’s hands.

“It states the obvious to observe that this matter is unique,” the lawyers wrote. (A lawyer for Cohen declined to comment Sunday.) Even people who do sign full cooperation agreements do not always fare well at sentencing. Federal judges in Manhattan have imposed prison sentences on cooperating witnesses in major corruption cases, even when the government has endorsed leniency.

“I think it still has to be the case that if you engage in a form of public corruption, you must understand that you go to jail,” Judge Jed S. Rakoff said in 2012 as he sentenced a former lobbyist-turned-cooperator to three months in a bribery case.

And three years ago, Judge Colleen McMahon, while sentencing a Westchester County, New York, lawyer who had cooperated to 18 months, said, “It just doesn’t seem right to me that you should get off without some real punishment.”

It is uncertain how Pauley — a Clinton appointee known for his intellect and independence — will weigh Cohen’s assistance when he decides on how severe a sentence to impose.

Katherine B. Forrest, a former federal judge in Manhattan who was a colleague of Pauley before she left the bench, noted that he ordered the lawyers to hand-deliver copies of their sentencing memos to his chambers by 5 p.m. Friday.

“He wanted to spend the weekend really culling through these,” Forrest said. “He will be really thoughtful about this.”