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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

 

UNITED STATES OF AMERICA, 
Plaintiff, AFFIRMATION
18-cr-602 (WHP)
18-cr-850 (WHP)
MICHAEL COHEN,
Defendant.


 

ROGER BENNET ADLER, being an attorney?at?law duly licensed to
practice law in the State of New York, and a member of the bar of this Court, makes the
following allegations under the penalty of perjury:

1. Your Affirmant is post?judgment counsel for the Defendant MICHAEL
COHEN, and as such am familiar with the facts and circumstances surrounding this
case. This affirmation is submitted in support of a post-judgment motion for a sentence
reduction to a term of one year and a day, or, in the alternative, a sentence modification
limited to the manner and venue where the Court?s previously imposed three year
sentence (see exhibit should be served going forward, pursuant to the power
conferred on the court by Federal Rules of Criminal Procedure Rule 35(b).

BACKGROUND
2. Defendant will, Your Affirmant notes, consistent with the ?First Step

Act,? and having surrendered on May 6, 2019, have served Virtually one?third of the

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previously imposed jail component of his sentence" by the time this motion is decided
(with credit for ?good time? earned at the Otisville Satellite Camp), and seeks a modest
reduction of his 36 month term of imprisonment to one year and one day, or, in the
alternative if the court declines to reduce his sentence, to a sentence modification to
serve the durationally final less than two years of the Court?s previously imposed
sentence on ?home confinement,? with no attendant cost to the Bureau of Prisons
(B.O.P.), and under the post?release strict supervision of the Court?s Probation
Department.

3. Defendant MICHAEL COHEN was sentenced as a ?criminal history
category 1? first offender, convicted of non?violent crimes. He pleaded guilty to, and
?accepted responsibility? for, conduct charged in an ?Information? (exhibit 
charging inter alia criminal tax violations, bank fraud, and campaign finance
violation.

4. Upon information and belief, Defendant Cohen has fully paid the
resulting tax obligation encompassed in the five tax counts, received no money (nor
caused the lender to experience any loss) on the ?line of credit,? and acted as the conduit
for payments to ?Stormy Daniels? to secure ?confidentiality agreements? on behalf of
Donald J. Trump to silence salacious intimate encounters allegedly involving women
with whom President Trump was involved.

5. The two ?campaign finance? counts tacked on the back end of the
?Information? thus potentially benefited a political candidate (Donald J. Trump) who

was then a Presidential Republican Party hopeful, and not surprisingly sought to quietly

 

Under the ?First Step Act? (F.S.A.), Defendant is eligible for discharge from the ?Otisville Satellite Camp?
prior to the previous transfer to community confinement at the end of a judicially imposed sentence.

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address his perceived transgression (and intimate conduct) contrary to the marriage
vows which Trump took for the third time.

6. Although each political campaign routinely designates a ?campaign
treasurer? designated to manage campaign contributions, and to compute,
maintain records, and file all required reports with the ?Federal Election
Commission? (F .E.C.). In this case, upon information and belief, this role was handled
by Donald McGhann, Esq. an experienced Washington, DC. based lawyer. Defendant
COHEN is, Your Affirmant notes, not alleged to have been a Trump Campaign official,
or employee charged with the legal responsibility to report not a monetary donation, but
what Acting United States Attorney Robert Kuzami viewed to be an ?in kind
contribution,? whose Trump Campaign Treasurer omission of them was perceived to be
willfully violative of the federal election law.

7. The Government hewed to this View even as President Trump?s decision,
to make monetary amends with porn star ?Stormy Daniels,? was focused as much (if not
more) on preserving his marriage from a potentially devastating charge of serial
philandering/ Penal Law adultery (Penal Law Section 255.17) than targeted campaign
strategizing.

8. Notwithstanding Defendant Cohen?s plea, the Government?s ardor to
fully clean the proverbial Trump Organization ?Augean stables,? and, in turn, hold the
?Trump Campaign? Treasurer Donald McGhann, Ms. Hope Hicks (whom Trump
consulted concerning the ?Stormy Daniels? payments), a Trump Campaign media

leader, or the ?Trump Organization? (which effectively funded the subject settlement

 

Upon information and belief, Donald McGhann, Esq. (who later became White House counsel) was the

Trump Campaign?s designated campaign Treasurer. He was not, however, criminally charged with filing
inaccurate campaign reports with the REG.

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payments [and presumably falsified ?Trump Organization? business records]) and
presumably unlawfully claimed them as a ?legal expense? [for tax purposes] has
apparently waned.

9. Under Attorney General William Barr, the President now appears to
finally have secured placement of what political pundit Joe Scarborough of ?Morning
Joe? refers to as his proverbial ?Roy Cohn, Esq.? a lawyer bent to his will, serving his
whims and needs, and committed to protect his ?legal back? (see New York Times
December 9, 2019 article ?Right Rejoices as Barr Assails Liberal Culture,? by Jeremy N.
Peters and Katie Benner [exhibit and the Saturday, December 7th, 2019 New York
Times editorial ?Merry Christmas, Mr. Trump? [exhibit Jeff Sessions has been
?kicked to the curb,? and politically banished from Main Justice.

10. This characterization manifested itself when Attorney General Barr
reportedly knowingly misstated the Special Counsel Robert Mueller Report a
?spinned?) and continued his Trumpian subservience by serving on, and supervising
investigations over which he has been criticized for having disabling ?con?icts of
interest.? More recently, Mr. Barr announced that the Justice Department?s annual 2019
holiday party would be held at Washington, Avenue ?Trump Hotel.?

11. Closer to home, the Southern District United States Attorney initially
eschewed any discernible interest in evaluating proffered credible information proffered
by Michael Monico, Esq. to Assistant United States Attorney McKay, and Your

Affirmant. An ?attorneys? proffer? was telephonically conducted on November 1, 2019,

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after participating in some four or more sessions? with Michael Cohen?s then defense
counsel Guy Petrillo, Esq, conducted at the Petrillo law firm, here in Manhattan.

12. Those who practice in the City?s federal courts well recognize that the
Government has crafted literally hundreds of cases predicated on cooperator 
?snitch?) testimony, from those who have injured, killed, pillaged, and defrauded
countless victims. Indeed, the summation argument ?birds of a feather ?ock together? is
frequently made to address the credibility of Government witnesses who have lived ?less
than exemplary? lives.

13. Whether the use of the late Leroy ?Nicky? Barnes to identify
and prosecute less culpable underlings, or using the murderous sociopath Sammy ?the
Bull? Gravano to convict John Gotti, there is no discernible existing ?morals clause? to
become a Government cooperator. Indeed, as this motion is being drafted, Suffolk
County District Attorney Thomas Spota, and a key aide, are on trial in Central Islip U.S.
District Court. The Government has used witnesses who are self?confessed criminals,
abused drugs and alcohol, committed adultery, and required counseling.
There clearly is no ?morals clause? to cooperate for the Government.

14. To listen to Michael Cohen at a proffer session is to open a door to a
veritable Trump Organization ?snake pit,? which will, of necessity, require ?Main
Justice,? to paraphrase then Mayor David Dinkins? criticism in a memorable New York
Post headline ?Dave, do something? (referring to the Crown Heights riots after

Norman Rosenbaum?s brother was killed by Lemrick Nelson).

 

If Cohen was as testimonially flawed as Assistant U.S. Attorney McKay has suggested, it is puzzling why the
Government held such a large number of proffer sessions with Cohen. We perceive the characterization as
palpably ?pretextual? in nature.

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15. This is clearly why the Government, which proffers potential
cooperators of all colors, ethnicities, creeds, and often criminal histories (?rap
sheets?), was reluctant, until November 2019, to entertain an ?attorneys? proffer?
detailing Defendant?s possible cooperation. It took over two weeks, and multiple emails
to elicit a response (exhibit 

16. It is against a background of both undisguised, and fully documented
(and palpable), governmental disinterest, that this F.R.C.P. Rule 35(b) application is
filed?, and against a powerful and deeply felt assertion that the Government failed to
appropriately treat Michael Cohen in ?good faith,? and so applying existing case law in
this and other circuits, this case should address Defendant Cohen?s sentence
modification plea, and exercise its Rule 35(b) sentencing review discretion to temper the
previously imposed three year sentence.

17. Defendant Michael Cohen is, Your Affirmant notes, in active litigation
with the ?Trump Organization? in Supreme Court, New York County (Cohen 1). Trump
Organization, Index 651377/ 19), in a case assigned to Justice Cohen, predicated upon
the Trump Organization?s refusal to reimburse Michael Cohen for his legal fees and
expenses arising from representing the ?Trump Organization.? The President?s wholly
owned and privately held company is thus in active litigation against a potential
cooperator. Mindful that Donald J. Trump did not place his assets in a ?blind trust,? the

litigation unfairly colors Defendant?s credibility assessment.

 

The Government appears to require a duly executed ?cooperation agreement? as a condition precedent to
a Rule 35(b) application. However, the Rule itself imposes no such requirement.

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THE STEP 

18. Under the so-called ?First Step Act,? a first offender can, through both
work for the B.O.P., and earned program credits, earn some fifteen days ?jail
time credit? off a judicially imposed sentence.

19. Thus, for an inmate serving a 36 month term of imprisonment,
Defendant Cohen would likely serve one more year prior to being transferred to
?community confinement.? Upon information and belief, he has been a model prisoner.

20. The sought ?takeaway? from this is to suggest that a modification of
the existing sentence is not a dramatic outcome. It will, however, permit Defendant to
begin the first tentative steps down the proverbial ?road to redemption,? and save
significant B.O.P. costs of incarceration.

21. Defendant has paid a heavy price. He has also cooperated significantly.
His cooperation should not be overlooked (or diminished), as America?s consciousness
is raised about precisely who occupies the ?Oval Office,? and the disruptive
consequences.

THE LAW A HEARING IS REQUIRED

22. To paraphrase Emile Zola?s ?Accuse,? Affirmant accuses the Barr
?Department of Justice? of not engaging with Defendant in good faith. This lack of good
faith, and disabling con?ict of interest, Your Affirmant contends, should not be a barrier
to recognizing Defendant?s substantial assistance to, and cooperation with, the
Government (which includes the Congress and Special Counsel).

23. Existing case law in this, and sister circuit courts, recognizes that there
are both times, and instances when the Government is unwilling (or unable) to serve as

the Rule 35(b) movant, but that such moving sponsorship is neither fatally

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disqualifying. or jurisdictionally lacking. A governmental failure (or refusal) judicially
found to be in ?bad faith? excuses Judicial Department forbearance.

24. As applied here, we submit that at a hearing the facts will support a
finding that the Government?s decision made by Acting United States Attorney Audrey
Strauss to effectively ?sit on its hands,? and bolt the door to One St. Andrews Plaza
supports consideration of an application which, we note, seeks a modest reduction of
Defendant Cohen?s sentence, and a limited modification of where it is to be served.

25. Attorney General Barr, since his assumption of of?ce as President
Donald J. Trump?s chief law enforcement officer, has been marked by controversy,
criticism, and con?icts of interest. His succession following the President?s vicious
hectoring departure of former Senator Jeff Sessions (R Alabama) as Attorney General
has been marked by partisan loyalty to the President who appointed him (see exhibits
and 

26. To this subject, Emily Bazelon?s October 27th, 2019 New York Times
article ?Who is Bill Barr?? addresses a Justice Department whose ?ethical has,
from the perspective of many, been dysfunctional for some time. That bias and
departmental dysfunctionality goes beyond the type of agency decisions cognizable as
the consequences of elections (?elections have 

27. Defendant Michael Cohen finds himself literally at the veritable head
of Donald J. Trump?s ?Enemies List,? along with former .B.I. agents Lisa Page? and
Peter Strzok, and F.B.I. Chief James Comey. Attorney General Barr?s base has

denounced cooperators as ?rats,? and praised convicted felons like Paul Manafort as

 

The President?s recent political rally mocking Ms. Page in the most graphic and hurtful terms cries out
for a Joseph Welch ?Have you no shame? retort.

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?standup? stalwarts. Sentence commutations and/ or pardons surely lurk on the
President?s post-2020 Election Day ?to do? list, unless Congressional impeachment
leads to Senate removal.

28. Defendant Cohen has not been sponsored for Rule 35 relief, we
submit, because his testimony leads directly down a pathway to possible indictment of
the President, the Trump Organization, the Trump Foundation, Trump
family members, and Trump Organization enablers.

29. To follow up Michael Cohen?s seven separate proffer sessions is to
?Open a door? which only the ?Office of Legal Counsel? (O.L.C.) memo can endeavor to
close. Indeed, we know from the oral argument in Trump 1). Vance, F. 3d [2nd Cir.
2019], that the President?s counsel, William Consovoy, Esq., has contended that the
O.L.C. memo extends to the preclusion of criminal investigations, complaints,
and indictments.

30. Having ?hammered? a first offender with Information counts which
held Cohen criminally liable for the Trump Campaign?s failure to report settlement
check payments to ?Stormy Daniels,? the Justice Department?s position is no deep
mystery. Any adult alive during the Watergate scandal has, Your Affirmant respectfully
submits, ?seen this movie before.? Attorney General Barr was not appointed Attorney
General to turn on the appointing authority.

31. The Justice Department was replaced by Special Counsel Robert
Mueller, and now has powerful proof previewed in Congressional testimony (exhibit
of systemic (and knowing) Trumpian wrongdoing, laced with obstructive behavior.

32. The ?separation of powers? limits the options available to the Court.
That being noted, it is appropriate to quantify and evaluate Cohen?s cooperation and

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acknowledge it as Rule 35(b) commands. That evaluation, Your Affirmant submits,
should follow burden shifting ?Batson? principles used to evaluate the alleged improper
use of peremptory challenges. A proper objection triggers a Government response, and,
if ?pretextual,? is sustained (see Batson 1). Kentucky, 476 US. 79, 96?98 [1986] accord.
Snyder v. Louisiana, 552 US. 472, 477?79 [2008]; see also United States v. Martinez,
621 F. 3d 101, 108?11 [211d Cir. 2010]).

33. The defense perception that the Justice Department has aligned itself
?rmly behind the President as its ?fallback position? buttressed by independent
judicially reviewable actions. We discuss them seriatim:

Congressman Cummings? ulv 19. 2019 Letter

34. On July 19, 2019, the late Congressman Elijah E. Cummings, Chair of
the House ?Oversight Committee? wrote a detailed letter to Acting Southern District
United States Attorney Audrey Strauss seeking clarification of the Southern District?s
decision to close its investigations of serious allegations that the President, his
company, his campaign committee, and various and sundry accomplices and
enablers, had knowingly violated the law (see exhibit 

35. The late Baltimore Congressman Elijah Cummings also sought to
clarify if the Southern District?s decision was, as with Special Counsel Robert Mueller?s
office, controlled by the Office of Legal Counsel (O.L.C.) memo re?ecting a Justice
Department opinion that a sitting US. President precluded indicting a sitting President.

36. The Congressman noted that Defendant Michael Cohen had not acted
alone in funneling what many viewed as ?hush money? payments to ?Stormy Daniels? to
prevent an Election Day scandal. These payments involved Trump Organization moneys

masked as a legal fee to Defendant Cohen, and false and misleading created business

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(see e.g. Penal Law Section 175.05, 175.10) conspiracy and tax perjury if the payments
were included? as appropriately deductible ?business expenses.?

37. Acting United States Attorney Audrey Strauss, upon information and
belief, has simply ignored (a/k/a ?stonewalled?) the House ?Oversight Committee?
letter. Upon information and belief, the Southern District has no future intent to reply to
Congress. Ms. Strauss did not respond to Your Affirmant?s December 5th, 2019 letter
(exhibit seeking a meeting.

38. In addition, it is public information that ?Main Justice? authorized
testimonial immunity and non?prosecution agreement to Trump Organization Chief
Financial Of?cer (C.F.O.) Alan Weiselberg, and National Enquirer publisher David
Pecker. Upon information and belief, the Southern District provided those in the Main
Justice Criminal Division with a detailed written ?proffer statement? identifying of
whom Weiselberg and Pecker would provide testimony sufficient to displace their
respective requisite invocation of their privilege against self?incrimination (Fifth
Amendment).

39. Against this backdrop, we respectfully submit, and would undertake to
call assistant United States Attorneys to a hearing to produce the immunity/non?
prosecution requests for these witnesses for the Court?s inspection and in camera
review.

40. These immunity requests will address if the investigation was closed to
protect the President and people close to him from possible criminal prosecution, and

mindful none are covered by the O.L.C. memo protecting the President.

 

President Trump moved to block the District Attorney of New York County when the tax returns were
subpoenaed by a Grand Jury from Mazars, the tax preparer for the President and his company.

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41. So partisan has the ?Barr Justice Department? been that when
President Trump essentially moved (without legal precedent) to enjoin his accountant
?Mazars?? firm response, to an appropriate (and presumptively appropriate) New York
County Grand Jury subpoena, Attorney General Barr moved before Senior U.S. District
Judge Victor Marrero in court, for judicial leave to intervene, and then proceeded to file
briefs opposing New York County District Attorney Cyrus Vance in both the U.S. District
Court, Southern District of New York, and the Second Circuit Court of Appeals, even
though President Trump was not called upon to: produce any evidence, respond
to interrogatories, or appear before a Grand Jury, and testify responsively, even
though the documents were all prepared in New York County, were present in
New York County, were routine tax returns on file with the Internal Revenue Service
(IRS), and enjoyed no Constitutional privilege.

42. More recently, on Monday, the Justice Department appeared in the
United States Court of Appeals for the District of Columbia Circuit in Blumenthal v.
Trump, involving allegations of a violation of the Constitution?s prohibition on
emoluments received by the President. On Thursday, the Justice Department will
appear before the United States Court of Appeals for the Fourth Circuit sitting en bone
and defend President Trump there (see New York Law Journal December 10th, 2019
page 2, column 1?6 ?It?s Emoluments Week in U.S. Appeals Court: Meet the Lawyers
Arguing,? by Scarcella and Robson).

43. Earlier this week, Michael Horowitz released an Inspector General
Report. Attorney General William Barr has joined President Trump in escalating their
attacks on the F.B.I., as detailed in the New York Times article ?Trump and Barr

Escalate Attacks Against the .B.I., by Katie Benner and Eileen Sullivan (New York

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Times, page 1). These criticisms, in turn, have generated professional criticism from
predecessor Justice Department officials in a December 11th, 2019 page 2 New York Law
Journal article (exhibit 

44. Against this backdrop, we recognize that the Government is not
mandated to file a Rule 35 (United States v. DeFeo, 327 Fed. Appdx. 257 [2nd Cir. 2009]
cert. den. 556 U.S. 1016 [court recognizes that an alleged credible basis to perceive the
Government acted in ?bad faith? triggers a hearing], of. United States v. Vangundy, 289
F.R.D. 498 Cal. 2013][m0vant who provided testimony viewed not credible and,
accordingly, not entitled to Rule 35 relief]; United States v. Katsman, 905 F. 3d 672,
674-75 [2nd Cir. 2018][Defendant found to have provided ?substantial assistance? but
Judge Bath properly found that defendant committed crimes while on pre?trial release.
Here, Cohen did 

45. In United States v. Scarpa, 155 F. Supp. 3d 234, 239 per
Korman, J. 2016] rev?d 861 F. 3d 59, 68?69 [21nd Cir.] cert. den. 138 S. Ct. 692 [2018],
Eastern District Court Senior Judge Edward R. Korman?? entertained an application for a
sentence modification on behalf of a defendant who provided ?substantial assistance? to
the Government. Judge Korman noted that con?icting reasons were provided for
refusing to file for Rule 35 relief. While a panel of the Second Circuit later overturned
Senior U.S. District Judge Korman?s decision granting Rule 35 relief, notwithstanding
the Government?s declination to support the application, the Court reaffirmed the legal
principal that lack of governmental good faith will not, as a matter of law be permitted

to block a cooperating defendant?s Rule 35(b) motion, see also United States v. Rexach,

 

Senior Judge Korman is a former Assistant U.S. Attorney, Chief Assistant U.S. Attorney, United States
Attorney, and Assistant Solicitor General.

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896 F. 2d 710, 714 [21161 Cir 1990](valuable assistance lost when Rule 35 discretion was
found abused).

46. Circuit Judge Kearse?s opinion, for the panel, in United States v.
Scarpa, supra. noted that defendant had a ?documented history? of sham proffer
sessions, and failed a polygraph exam. Accordingly, it is understandable that the
Government did not agree to a sentence modification. Here, Michael Cohen?s
Congressional dissembling related to Trump Organization business in Moscow, Russia,
and were allegedly the product of counsel from Jay Sekulow, Esq., the President?s
lawyer. Defendant Cohen did not, Affirmant submits, act for self-benefit.

47. In United States v. Brechenr, 99 F. 3d 96, 99?100 [2nd Cir. 1996], a
Rule 35 application was properly denied under circumstances where the defendant lied
to the prosecutor during the period of defendant?s cooperation.

48. In Krecht v. United States, 846 F. Supp. 2d 1268, 1292 Fla.
2012], the Court recognized that the Government?s refusal to file a Rule 35 motion
cannot be predicated upon either a discerned vindictive, or unconstitutional
motive (see e.g. United States v. Dorsey, 512 F. 3d 1321 [11th Cir. 2008] vac. 554 F. 3d
958 [11th Cir. 2009]).

49. Where as here the Government?s actions are perceived as potentially
questionable, a hearing should be ordered to address these allegations United
States v. DeFeo, 327 Fed. Appdx. 257 [2nd Cir. 2009]; United States v. Rexach, 896 F. 2d
710, 714 [2nd Cir. 1990]), and to hear the Assistant United States Attorney under oath,
and with cross-examination. This writer has found the Government prefers to

communicate using unsworn letter briefs.

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OF BAD FAITH

50. President Donald J. Trump, many believe, is a disruptive and
institution challenging Chief Executive. He appointed former Alabama US. Senator Jeff
Sessions as his Attorney General, and then mercilessly hectored him until Senator
Sessions resigned.

51. President Trump then nominated Attorney General William Barr, who
has, from Your Affirmant?s perspective, ?bent over backwards? to assuage his ?client,?
President Trump. Indicia of this extraordinary Presidential deference are inter alia:

intervening in Trump v. Vance, F. Supp. 3d 2019]
aff F. 3d [2nd Cir. 2019], notwithstanding the irrefutable
fact that District Attorney Vance was merely enforcing a New York
County Grand Jury subpoena not personally served upon President
Trump, but rather on a third party (his tax preparer ?Mazars?)

supporting and extending an Office of Legal Counsel memo which
views a federal criminal trial of a sitting President as inappr0priate

booking the Trump Hotel located on Avenue for the
annual Justice Department holiday party

52. In addition to the above, Attorney General Barr designated the
Connecticut US. Attorney to investigate the Russia probe, and has (if media reports are
accurate) been gallivanting around Europe on the ?Government?s dime,? in a mission to
corroborate Trumpian conspiracy theories only one step removed from Russian claims
they invented baseball, and that Stalin was a positive role model who cared about the
quality of Russian peasant life, and freedom of both expression, and religion. Just ask

the Soviet Jews, who ?ed Odessa for the right to attend Shabbat services.

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53. Finally, in addition to the clear appearance that Attorney General Barr
was designated to his position because he would be the President?s ?Roy Cohn,? there is
President Trump?s vocal and persistent denunciations of Michael Cohen (and everyone
else whom the President disfavors). With the release of Justice Department Inspector
General Horowitz?s December 9th report, this has now prodded Attorney General Barr to
misstate Horowitz?s report (see New York Daily News December 10th page 24 article
?Inconvenient Truths? and New York Post December 10th article Barr Knocks
Findings? at exhibit 

54. For those who grew up, and came of age during the sixties, we have
never witnessed a President of the United States pardoning political cronies, war
criminals, and those Viewed favorable by his political base.

55. Moreover, after an unprecedented search warrant was drafted and
executed by the Acting United States Attorney Robert Khuzami for Defendant?s books,
records, and personal property, notwithstanding many covered by ?attorney?client
privilege? (Mr. Cohen was attorney for the ?Trump Organization?).

56. In an effort to induce the ?Trump Organization? to pay his legal bills
arising from investigations predicated (in whole or in part) upon legal services which
Michael Cohen provided to both the ?Trump Organization,? and to its principal, Mr.
Donald J. Trump. There is, against the aforesaid backdrop, a pending civil case in
Supreme Court, New York County, Michael D. Cohen 1). Trump Organization, Inc.,
under index number 651377/ 19. We attach a copy of the civil complaint (exhibit 
The Trump Organization has refused to pay Defendant Cohen?s legal fees arising from

Cohen?s service as a Trump Organization vice president and counsel.

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57. Against this backdrop, the Southern District has either immunized (or
extended non?prosecution agreements) to Trump Organization C.F.O. Alan Weisselberg,
and the National Enquirer?s David Pecker. The Southern District has ?circled the
proverbial wagons? to protect President Trump. Rather than staying clear of Trump v.
Vance, it has forcefully intervened.

58. Rather than supporting a sister law enforcement agency, the S.D.N.Y.
has intervened, and impeded an investigation being conducted in good faith by a duly
elected District Attorney, and focused on actions preceding President Trump?s
Presidential inauguration.

59. Viewed in the light most favorable to defendant, both the
Government?s objectivity, and motives, have been drawn deeply (and repeatedly) into
question. A ?Scarpa? hearing is, accordingly, we respectfully submit, required to develop
an appropriate record to insure that Michael Cohen is not the ?collateral damage? of a
President who has the warped mindset that cooperators are ?rats,? and should be
badgered, hectored, punished, and coerced.

60. President Trump is entitled to his personal opinions and political
beliefs. Playing ?Michael Corleone? is just not one of them.

POWERFUL AN IMUS

61. That Assistant US. Attorney Thomas McKay would reject Michael
Monico?s written request for a November proffer session (see his response at exhibit 
and my followup to Assistant US. Attorney Laura G. Birger at exhibit was
disappointing, but not surprising. Your Affirmant views it as consistent with a personal
prosecutorial View which had no discernible interest in aggressively pursuing possible

evidence, and so was devoid of any quantitative or qualitative details which would

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explain a disinterest in pursuing facts and investigative leads wherever (or however)
high they may have led. For McKay, the ?non?prosecution? agreements extend to the
likes of the ?Trump Organization? C.F.O. Alan Weisselberg, and the National Enquirer?s
David Pecker, ended with Michael Cohen?s guilty plea to an ?Information? (exhibit 

62. The indicia of a separate, and different standard for pursuing
cooperation, Your Affirmant submits, started when the Government elected to execute
massive search warrants against Michael Cohen, rather than proceed with Grand Jury
subpoenas duces tecum. The notion that the United States Attorney?s Office would use
search warrants addressed to a practicing lawyer (and business consultant) re?ects a
callous and arrogant perception of (and willingness to unleash) naked prosecutorial
power.

63. This was decidedly not a case or instance in which Cohen was ?house
counsel? to an organized crime family, or drug cartel. Rather, he was simply a lawyer
who provided legal services on behalf of the Trump Organization, and crafted ?catch and
kill? contractual agreements which paid women who alleged to having had extramarital
relations with Donald J. Trump to sti?e possible personal scandal.

64. Cohen concededly also pursued business interests as a consultant, and
garnered New York City taxi medallions, which were, in turn, leased to drivers and
generated a weekly ?cash flow.? That being noted, the need to enter a private space to
execute search warrants on:

Cohen?s residence

hotel room?

 

The Cohen Family was living in a hotel room while their apartment was being renovated when the search
warrants were executed.

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law office
safety deposit box
two cell phones

is breathtaking even now.

65. This lack of professional sensitivity for attorney?client privileged
evidence was both knowingly downplayed, and discounted by the United States
Attorney?s Of?ce.

66. This approach was, we note, different when (to its credit) the
New York County District Attorney sought to obtain Donald J. Trump?s tax returns from
his tax preparer ?Mazars.? These tax returns were demonstrably not privileged
documents, but, nonetheless, the District Attorney used Grand Jury process, and not
search warrants to seek custody of them.

67. Of course, the use of subpoenas provides pre?turnover litigation
opportunities and options which a search warrant doesn?t. A motion to controvert a
previously executed search warrant, and suppress evidence is far limited. That, of
course, was, we presume, precisely the idea dramatically grab Cohen?s documents
(?shock and awe?), and peruse them at leisure, to find evidence suggesting possible
criminal transgressions.

68. That Cohen later pleaded guilty, after the Government reportedly
threatened to prosecute his wife, Laura Cohen, is a prosecutorial tactic which Your
Affirmant perceives as ?old as dirt,? but no less coercive. Even those with triable cases
are forced to jettison their trial rights when the Government ?ups the ante,? and chooses

to ignore ?innocent spouse? protections to ?jawbone? a defendant?s guilty plea.

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69. Indeed, we submit that Acting US. Attorney Robert S. Khuzami?s
overreach may be found in the Southern District?s demand that Cohen ?eat? two
campaign finance counts, even though he was concededly not a Trump campaign of?cial
(much less campaign treasurer), and, even as (at worst) a vendor of a service viewed
beneficial to the Trump Campaign, had no reporting duty, or responsibility,
under existing federal campaign law to report his alleged ?in kind? service to the Federal
Campaign Commission in Washington, DC.

70. arringly, Don McGahn, Esq. (the Trump campaign treasurer), Hope
Hicks (a paid Trump campaign media consultant), Donald J. Trump, and signatories of
?Stormy Daniels? checks g. Alan Weisselberg and Donald J. Trump, Jr.) got a ?pass.?
Cohen didn?t. Why?

71. The Southern District likely views itself bound by the Office of Legal
Counsel (O.L.C.) memorandum that a sitting President cannot be forced to stand trial
for violating federal criminal statutes (see exhibit However, Affirmant disputes
that there is any legal impediment to criminally charging a sitting President for his
private conduct preceding his inauguration, and unrelated to political
partisanship.

72. This caveat has been ignored, even though the President has both
repeatedly de?ected, and dissembled, regarding his knowing ?catch and kill? payments,
which Michael Cohen expressly negotiated at Trump?s direction, using ?Trump
Organization? funds (not Trump?s ?personal funds?). Walter Dellinger?s attached
?Lawfare? article advances a far different, less deferential View (exhibit 

73. Here, the relevant O.L.C. memo empowers the running of the ?statute

of limitations? (18 U.S.C. 3182). That the William Barr-led Justice Department does not

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choose, for institutional reasons (not existing case law) to file criminal charges (if only to
appropriately toll the statute of limitations), we submit, or seek through a waiver a toll
of the ?statute of limitations? until January 19, 2021, re?ects an Orwellian ?Animal
Farm? approach to federal criminal jurisprudence.

74. Since the S.D.N.Y. recites the catechism that Trump can?t be tried,
Cohen can?t obtain Rule 35(b) relief? Why? Where is the equity and justice?

75. The Justice Department?s desire to believe and protect President
Trump is ?touchingly? disclosed in footnote 5 on page 11 of Assistant US. Attorney
McKay?s April 13, 2018 opposition memorandum, where McKay wrote ?And there is
reason to doubt that even communications with his [Cohen?s] only identified
Trump has publicly denied knowing that Cohen paid 

76. The Government, we note, chose to credit a President whom political
pundits have documented has told more than 13,000 lies while in office?. The Cohen and
Trump recorded conversations, we contend, put the lie to that claim. The fact is that
Trump both knew, and knowingly approved of the payments which Michael
Cohen made on Trump?s behalf to ?Stormy Daniels.?

77. Assistant US. Attorney Thomas McKay has never apologized for
accepting President Trump?s word over that of Michael Cohen. Concerning the Stormy
Daniels payments, ride often goes before the fall. Cohen spoke truth to power. Assistant
US. Attorney McKay is a disclosed Trump enabler whose declination to use Cohen to

make cases against President Trump?, high level Trump Organization executives, and

 

Per Washington Post ?Fact Checker,? October 9, 2019

More recent testimony at the impeachment inquiry before a House of Representatives Committee
chaired by Congressman Adam Schiff in Washington, DC provided powerful proof that President Trump
?muscled? the Ukrainian government to investigate Vice President Biden, and his derelict son, Hunter

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Trump family members, strikes this writer as an example of Orwellian logic all
animals are equal, some are, however, more equal than others.

78. Cohen does jail time, while Trump tramples on the Constitution. This
is not a ?good look.? Michael Cohen should not be the Government?s scapegoat for
shameful Trumpian boot licking.

79. A hearing should be held.

CHAIRMAN CUMMINGS 

80. On July 19, 2019, House of Representatives ?Committee on Oversight?
Chair Elijah Cummings wrote to Acting U.S. Attorney for the Southern District of New
York Audrey Strauss, addressing a series of questions (exhibit It was prompted by
the Chairman?s voiced concern that the Southern District was not acting in prosecutorial
?good faith.?

81. Since Chairman Cummings? letter was sent, upon information and
belief the Government has done nothing publicly known to respond except notify the
Court that it had closed investigations of inter alia:

Donald J. Trump
the Trump Organization
Trump executives
the Trump Foundation
82. Nor did Acting U.S. Attorney Audrey Strauss respond to Your

Affirmant?s December 5th letter seeking meeting to discuss Defendant Cohen?s

cooperation (exhibit 

 

Biden. Coercion and extortion are still crimes in America, just apparently not at ?Main Justice? when
committed by Donald J. Trump.

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83. This is troubling, and is likely questionable in a manner which the
exchange of correspondence with Justice Department Criminal Division overseers were
told concerning why affording such individuals as Trump Organization C.F.O. Alan
Weisselberg, and the National Enquirer?s David Pecker and Dylan Howard non-
prosecutorial testimonial immunity was required.

84. We question: to what end? We recognize that the ?separation of
powers,? between the Executive Branch, and the Judicial Branch, make judicial
directives to prosecute a given crime, or given individual, are Constitutionally
inappropriate.

85. The Court, however, has an appropriate role where the two branches of
U.S. Government come into contact. Where, as here, a Rule 35(b) motion is filed, and an
evaluation of governmental bona?des is drawn into question, judicial oversight
unquestionably exists.

86. As we perceive it, the Government has acted in bad faith to stymie fair
consideration of inter alia good faith post-sentence c00peration by the Government?s
unilateral decision to shut down its investigations of all matters Trump, and to proceed
to wildly expansive acceptance of both ?executive privilege? and ?Presidential immunity?
(a/k/a the Office of Legal Counsel memo).

87. Here, Cohen has proffered credible information which are inter alia
natural followups to the ?nal two counts of the Cohen indictment We
perceive the Government?s right to investigate, and indict both Donald J. Trump,
the Trump Organization, Donald Trump and members of the Trump Campaign for
campaign finance violations under circumstances where an overt act occurred anywhere

in the Southern District of New York.

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88. Essentially, from our perspective, the Southern District has closed its
litigative ?eyes and ears,? and then told Cohen he has provided no relevant cooperation
worthy of investigative followup. One St. Andrews Plazahas essentially operated by a
?heads we win, tails you lose.? A legal equivalent of a ?three card monte? game does not
bespeak, Your Affirmant submits, ?good faith.? A hearing is, accordingly, required.

FINAL THOUGHTS

89. With ?Articles of Impeachment? drafted and awaiting a vote in the
House of Representatives, and with an Inspector General?s Report ?hot off the press,?
Attorney General William Barr has moved both publicly, and vigorously, to insure that
he is aligned with President Trump a man for whom disruption and rancor know no
discernible limits, as re?ected by his reference to the F.B.I. as ?scum.?

90. Like the character ?Mayhem? in the auto insurance ad, the President
has a combustible governing style, and a fondness for litigation unparalleled in U.S.
history. The refusal to support a Rule 35 is a Trumpian response which should be seen
for what it is. Like Orwell?s ?Animal Farm,? ?some are more equal than others, and
anyone who cooperates is a ?rat.?

WHEREFORE, we respectfully pray that the motion be GRANTED to the
extent of ordering a hearing.

Dated: New York, New York

December 11, 2019
mil/kw B. Adlerk?aj

Attorney for Defendant MICHAEL COHEN

 

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