Vail Law: Here’s a quick primer on pleas, ‘flipping’ and immunity (column)
August 29, 2018
You'd think you were in a pancake house, there's so much flipping going on.
Or at least, it seems, the president would.
In the past handful of days, President Donald Trump's former lawyer/fixer Michael Cohen pled guilty to a bunch of nasty felonies; AMI CEO and publisher of the National Enquirer and longtime Trump ally David Pecker agreed to cooperate with the Mueller probe; and — perhaps most devastatingly to the president — Allen Weisselberg, the longtime chief financial officer of The Trump Organization — agreed to play footsie with the Southern District of New York prosecutors who are going after Cohen.
And then there is the doorman.
In case you can't keep up with this sprint of salacious daily news, Dino Sajudin, longtime Trump World Tower door-holder, was released from his confidentiality agreement with the Enquirer and can now squawk freely about his claim that Trump fathered a love child with his former housekeeper. Until recently, you could only read this kind of stuff in the Enquirer.
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In any event, whether Sajudin's claim ultimately pans out or not, it's been a rough week for The Donald.
In summary fashion, let's review. Cohen was Trump's lawyer/confidant/fixer for a dozen years or so. Not only has he now effectively pled to engaging in a conspiracy with Trump to pay hush money to Trump's alleged paramours but — wait, there's more — they did so with the intent of influencing the election. What's more, in the vernacular of the day, Cohen is presumed to know where Trump skeletons are buried.
Pecker is reportedly sitting on a peck of sordid "catch-and-kill" stories regarding Trump's various alleged wrong-doings tucked away neatly in his safe. In exchange for his immunity from prosecution, he has reportedly agreed to show and tell. "Here's what Trump did on his summer vacation." Or something of the sort.
And there there's Weisselberg who, by all accounts, knows more about Trump and his various business dealings than does Trump himself.
Oy vey, what a bad couple of days he's had.
To be precise, while Weisselberg and Pecker were granted immunity, Cohen simply spilled a gut, apparently with no guarantee of any quid pro quo.
So, let's define a term or two.
First, there's "flipping," the precise legal definition of which is … well, there's not one. In the lingua franca, the implication is to switch sides. At one moment you are a Trump loyalist, and the next, after prosecutors explain to you in patient detail how your fanny may be on the line, presto-chango, you determine it might be a good idea to sit down to tea and crumpets with those nice young men and have an intimate little chat.
Recently, feeling like the only un-popped kernel in the popcorn machine, Trump declaimed that "… flipping almost ought to be illegal" which fell on cloth ears in the halls of justice.
What about pleas?
I'd be pleased to explain.
In short, a plea is calculated of a "you give me this and I'll give you that in return" sort of bargain. In exchange for sparing the people the cost, risks and burden of prosecution, you agree to plead to something, often a lesser offense or some — but not all — of the charges against you. As a plea deal almost always results as the product of some haggling between the prosecutors and the accused's attorney, all manner of "this-for-that" may be considered. Sometimes, one facing serious time in the pokey absent a plea will agree to chatter away about his/her fellows in exchange for a bit of leniency. By-the-by, there are rules about all of this; a prosecutor cannot just willy-nilly cut a deal, there must be clear justification for so doing.
Then there is immunity.
Both state and federal statutes may grant witnesses immunity from prosecution for the use of their testimony in court or before a grand jury. Sometimes, the testimony of one witness is so valuable to the goals of crime prevention and justice that the promise of allowing that witness to go unpunished is a fair trade.
Although the Fifth Amendment to the U.S. Constitution grants witnesses a privilege against self-incrimination, the U.S. Supreme Court has permitted prosecutors to overcome this privilege by granting witnesses immunity. Prosecutors have the sole discretion to grant immunity to witnesses who appear before a grand jury or at trial.
In order for immunity to be conferred, one must consider a little legal beast know as a "corpus delicti" or, in plain English, "the body of the crime." The prosecutor must consider that what the person being granted immunity has to say is only one piece of the puzzle and other evidence will also support that the alleged crimes have taken place.
In the present context, prosecutors have apparently determined that what Weisselberg and Pecker have to say is so valuable, that they should speak freely rather than hide behind the shield of self-incrimination.
There is an old Chaldean curse that goes like this, "May you live in interesting times."
So how do you like yours: buckwheat, buttermilk or blueberry?
As Jerry Lee Lewis might have phrased it, "Whole lotta flippin' goin' on!"
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 and at his email address, email@example.com.