Mikhaila Fogel and Benjamin Wittes: Mueller is laying siege to the Trump presidency

In brief No. 2, the U.S. Attorney’s Office for the Southern District of New York asks a federal judge to sentence the former Trump attorney Michael Cohen to a “substantial term of imprisonment”—meaning between three and four years. Last week, Cohen’s lawyers filed a brief lauding their client’s cooperation with the Special Counsel’s Office, the Southern District of New York, and the New York attorney general, downplaying the significance of his crimes and asking the court to sentence Cohen to probation. Such gambits are tricky: Defense lawyers must thread the needle between praising their client’s cooperation and seeking leniency enough to sway the judge, but not doing this so effusively that they trigger a prosecutorial rebuttal. Here, Cohen’s lawyers’ pirouette turned into a disastrous face-plant.

The prosecutors’ rebuttal of Cohen’s sentencing brief is one of the more livid denunciations I’ve seen in more than two decades of federal criminal practice. The Southern District concedes that Cohen provided some information to it, to the special counsel, and to the New York attorney general. But Cohen refused to cooperate fully; he declined to engage in a full debriefing about everything he knew or to commit to ongoing meetings, and he only spilled about the things he’d already admitted in his plea. That’s not how cooperation works. In this game, you either cooperate fully or you shut up; there is no middle ground. It’s not surprising that Cohen’s stance angered the notoriously proud Southern District prosecutors.

The New York prosecutors blast Cohen’s “rose-colored view of the seriousness of his crimes,” accusing him of a “pattern of deception that permeated his professional life.” Prosecutors portray Cohen as stubbornly obstructing his own accountant to cheat at taxes, even refusing to pay for accounting work that raised inconvenient issues he wanted suppressed. When it comes to Cohen’s campaign-finance violations, the prosecutors’ fury leaps off the page. Cohen, they say, schemed to pay for two women’s stories (Stormy Daniels and Karen McDougal, we now know) in violation of campaign-finance laws in order to influence the 2016 election, and did so “in coordination with and at the direction of Individual-1”—that is, the president of the United States. As the brief puts it:

While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

If the Southern District’s fury at Cohen is notable, its explicit accusation that President Trump directed and coordinated campaign-finance violations is simply stunning. The prosecutors’ openness suggests that they are sure of their evidence and have mostly finished collecting it. It’s a sign of a fully developed, late-game investigation of the president’s role, one that may soon make its way to Congress.