Page Pate discusses President Trump’s comments on “flipping”
Recognized as a legal analyst and a federal criminal defense attorney, Attorney Page Pate has been representing people charged in serious federal criminal cases for over 20 years. Occasionally, Page will write opinion articles discussing important legal issues and cases appearing in the news.
In this opinion article published by CNN, Page discusses President Trump’s recent attack on the concept of cooperating witnesses, or “flipping,” as the President’s former attorney, Michael Cohen, entered a plea agreement with the government, and Allen Weisselberg, the CEO for the Trump Organization, was granted immunity in exchange for providing information about Cohen to the government.
Page does acknowledge that he is “very happy that the President made these “flipping” comments” and says that he intends “to quote him liberally in my next trial and I will suggest at every opportunity that cooperating witnesses cannot be believed, and that flipping itself should be outlawed,” but explains “that cooperating witnesses are the fuel in the tank that keeps the federal criminal justice system running. Without “flipping,” federal prosecutors would have a very hard time doing their job. The fact is that cooperation is such a vital part of the federal criminal justice system that judges routinely instruct jurors who may be skeptical of the process that it is perfectly “lawful and proper,” although they may want to be a little more skeptical of the testimony of a witness who has a deal with the government.”
Further explaining the importance of cooperators and how they are usually viewed, Page writes that “it is rare for a federal prosecution not to be based, at least in part, on the testimony of a cooperating co-defendant or co-conspirator. No one really likes cooperating witnesses. They are loathed by everyone in the criminal justice system, often ostracized by their community, and they almost always shunned by their former associates and friends. If they are sent to prison, other inmates either avoid them or hurt them. Even prosecutors distance themselves from their cooperators. After all, before they became trusted government witnesses, these people were criminals themselves. And it’s common for the people who end up cooperating to start out by lying to investigators.”
Page again emphasizes the importance of cooperating witnesses and says that “snitching in criminal cases, especially in federal court, has become so ingrained that the entire system would soon collapse if it disappeared. Cooperating, by whatever name you call it (for Trump, “flipping”), works because it helps secure convictions in otherwise tough cases. In many criminal cases, the only witness with knowledge of how the crime was planned and committed will be someone who actively participated in it. Although defense lawyers like me may not like it, cooperating witnesses can help the prosecution by providing firsthand knowledge of illegal conduct or by connecting the dots in a complicated case.”
Regarding President Trump’s criticism of the act of cooperating, or “flipping,” Page says “If President Trump really wanted to “outlaw” flipping as he has suggested, he could do it today. All he needs to do is to instruct the Justice Department to immediately stop bargaining for the testimony of cooperating co-defendants and co-conspirators. Of course, if he does that, he needs to understand that the number of people convicted in federal court will dramatically plummet. And the number of acquitted defendants will almost certainly include a few guilty ones in the mix.”
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.