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Why sentencing judge may not show Cohen 'mercy'

Editor's Note: (Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.)

(CNN) Michael Cohen, President Donald Trump's former lawyer and fixer, faces sentencing on Wednesday before a federal district judge in the Southern District of New York. Cohen will learn his fate, which likely involves years in jail, and we will learn more about the value of Cohen's cooperation and potential usefulness to special counsel Robert Mueller.

First, what sentence is Judge William Pauley likely to impose? I've appeared in front of Judge Pauley in many cases. He is fair but tough. Lawyers and defendants often find him intimidating. He has administered tongue-lashings to many prosecutors (yes, including me), defense attorneys and litigants. He has a serious, formal demeanor on the bench. If a prosecutor introduces herself using a shortened name ("Jen," for example), Judge Pauley will correct her and declare that, in his courtroom, she will be known by her full name, "Jennifer."

In my experience, Judge Pauley is a stern sentencer, particularly where the defendant has exploited a position of authority and acted out of greed or arrogance. The SDNY prosecutors, clearly aware of this tendency, noted in its sentencing memo last week that Cohen, "an attorney and businessman ... was motivated to do so [commit crimes] by personal greed, and repeatedly used his power and influence for deceptive ends."

Judge Pauley can show mercy to a truly unfortunate or disadvantaged defendant, but he does not usually take kindly to abuse of power.

Under the federal sentencing guidelines, the SDNY argues that Cohen faces a sentencing range of 51 to 63 months. The federal guidelines are based on a chart: one axis reflects the defendant's prior criminal history (for Cohen, none) while the other reflects the seriousness of the offenses (for Cohen, fairly serious -- offense level 24 out of a maximum of 43). The range is not binding but it is important. Judge Pauley must consider the range, but he can sentence within, above or below it at his discretion.

In Cohen's sentencing memo, his attorneys request a sentence of no jail time. (Disclosure: Cohen's attorney Guy Petrillo is a former colleague and supervisor of mine at the SDNY). The attorneys claim, among other things, that Cohen provided valuable assistance to prosecutors; that he has accepted responsibility for his crimes; that he is a good family man; and that he has been subjected to a "raw, full-bore attack by the most powerful person in the United States." Cohen's attorneys argue valiantly that he should be spared prison but, simply put, it's not gonna happen.

But Cohen likely will be sentenced below the guidelines range. Both the SDNY and Mueller filed sentencing memos last week arguing with varying degrees of enthusiasm for a below-guidelines sentence.

The SDNY memo notes that Cohen did not fully cooperate and it takes issue with Cohen's characterization of his own criminal conduct. The memo dismisses Cohen's request for no jail time as "meritless" and recommends a "substantial term of imprisonment" reflecting a "modest variance" from the guidelines range. Mueller's memo strikes a decidedly more positive tone. Mueller requests that Judge Pauley "give due consideration" to Cohen's cooperation -- which Mueller deems "credible and consistent with other evidence" and "relevant and truthful."

Judge Pauley likely will give Cohen some credit for providing useful information to Mueller, but almost certainly won't let Cohen walk, given the SDNY's tepid support for only a modest reduction.

Beyond the consequences for Cohen himself, Wednesday's sentencing will give us insight into the value of Cohen's cooperation to date and Mueller's ability to build on that cooperation as the investigation progresses.

The SDNY makes clear in its sentencing memo that it is not impressed by Cohen's cooperation. It notes that Cohen does not have a cooperation agreement because he chose not to cooperate fully. Although Cohen could have provided "fruitful" cooperation, had he fully come on board with prosecutors, he instead "specifically declined to be debriefed on other uncharged criminal conduct."

This explains the SDNY's resistance to Cohen's request for no jail time. In the SDNY, cooperation is all or nothing. Cooperators do not get to choose what information to provide or whom to cooperate against. Cohen bucked the SDNY's system, and the SDNY rightly argues against him receiving full credit for partial, selective cooperation. If other potential cooperators believed they could drastically reduce their sentence by cooperating selectively, then the cooperation process would be undermined because prosecutors could not obtain information that cooperators wished to withhold.

While the SDNY takes a dimmer view of Cohen's cooperation than Mueller does, they both agree that Cohen's cooperation was truthful and valuable. The SDNY states that it "assessed Cohen to be forthright and credible" while Mueller concludes that Cohen was "credible and consistent with other evidence" and provided "relevant and useful" information.

Mueller characteristically appears to engage in understatement here. His sentencing memo hints that Cohen has provided information that is not merely "relevant and useful" but monumental.

The memo lists four areas in which Cohen already has cooperated, each potentially reaching right into the White House:

  • Cohen's contacts with Russian interests during the campaign and his conversations with others about those contacts;
  • "Useful information concerning certain discrete Russia-related matters core to [Mueller's] investigation" -- meaning Cohen provided information to Mueller about coordination between Russia and the Trump campaign;
  • "Relevant and useful" information about Cohen's contacts with White House personnel in 2017 and 2018; and
  • Cohen's false testimony to Congress about the Trump Organization's Moscow project, and his conversations with others to prepare that false testimony.

Each of those topics could bring criminal liability to Trump himself or to inner-circle members of his administration.

The big question then is whether Cohen will continue cooperating after sentencing. Cohen vows in his sentencing memo that he will. However, once he has been sentenced, his incentive to cooperate diminishes.

There is a mechanism in the federal rules -- Rule 35 -- that permits the prosecutor to ask the judge for a reduced sentence if the defendant provides valuable cooperation after his original sentence was imposed. If Cohen receives a sentence that he simply cannot bear, he will be highly motivated to continue providing assistance to Mueller, and perhaps to come clean on previously undisclosed topics, in hopes of earning an eventual Rule 35 motion.

Paradoxically then, the more time Cohen gets on Wednesday, the more likely he may be to cooperate fully with Mueller as the investigation builds to a crescendo.

The stakes on Wednesday undoubtedly will be high for Cohen and for his ability and incentive to cooperate moving forward. Cohen's future cooperation, in turn, will affect Mueller's ability to penetrate into the heart of corruption in the Trump campaign and the White House.