Fraud allegations by the Trump group are placing Weisselberg below stress to show again
What if Allen Weisselberg doesn’t tip over?
This is a question that Manhattan attorneys likely asked themselves before indicting the Trump organization and its chief financial officer of 15 tax frauds on Thursday.
“Turning around” defendants means persuading them to move from defense to prosecution by cooperating against their fellow criminals. In return, the prosecutors promise the cooperation partners an advantage, for example an agreement not to indict them, to charge them with a lesser criminal offense than the full extent of their misconduct, or to recommend a reduction in the sentence.
Turning over defendants is a common strategy in law enforcement. This is because a criminal’s staff are best placed to find out details about the facts of their crimes. Even a case that is primarily document based, like a tax case, often requires a narrator to help connect the dots. An insider who cooperates can help put the pieces together in a way that is understandable for a jury.
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Typically, prosecutors use subordinates of a criminal organization to cooperate against “bigger fish” whose behavior is more egregious. In the Trump organization, there are few people in the organization chart who are above Weißelberg. These include Eric Trump, Donald Trump Jr., and Trump himself.
A cooperation partner can be particularly valuable in commercial criminal prosecution. In these cases, the issue is often not what happened, but whether the behavior was done for an improper purpose. An innocent error in a tax return can punish the taxpayer with fines, penalties or tax back payments, but not with criminal consequences. A conscious attempt to evade taxes, on the other hand, can result in jail terms. An agent may testify about the content of conversations with co-conspirators to help the prosecutor determine whether actions to improperly reduce tax bills were intentional.
The naming of Weißelberg as a defendant signals that the public prosecutor’s office has not yet succeeded in making him freak out. Sometimes a subject who refuses to cooperate before a charge is brought will change their mind as soon as they see their name on an indictment. An appearance in court where a judge sets binding conditions that limit freedom can serve as a wake-up call.
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For example, Trump campaign vice chairman Rick Gates initially refused to cooperate and was named co-defendant along with Paul Manafort in a federal indictment in 2017, but turned around shortly thereafter and spoke out at Manafort’s trial in exchange for a recommendation Reduction of his sentence. He ended up serving a 45-day prison term for his role in various fraud and tax offenses. Manafort, on the other hand, was sentenced to more than seven years in prison, partly on the basis of Gates’ testimony, before he was pardoned by then-President Donald Trump.
Weißelberg is an ideal cooperation partner. He has been with the Trump Organization since 1973, back when it was led by Fred Trump, the former president’s father. Weißelberg himself is charged with receiving some of the untaxed benefits, so he probably knows who else in the company was involved in the fraud. In his role as Chief Financial Officer, he has access to information about tax planning decisions and how funds are raised and used. This means that he can testify not only about tax crimes, but also about other potential financial crimes that are being investigated.
Manhattan District Attorney Cyrus Vance has stated in court records that his office is investigating the Trump organization for banking and insurance fraud. In fact, Trump’s former attorney Michael Cohen told Congress that Trump had a practice of manipulating the value of assets for his benefit, deflating their value for tax purposes, and increasing their value for obtaining credit. If so, these charges could bring other Trump Organization executives to criminal prosecution and penalties more severe than the tax burden.
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Additionally, prosecutors would likely be willing to sacrifice the maximum sentence they could receive against Weisselberg if he could testify to prosecute higher-ranking Trump organization executives whose conduct is more serious. For example, a senior corporate executive who directed Weisselberg or others to violate the law by misrepresenting financial gain would be viewed as a superior target.
But what if Weißelberg doesn’t tip over? The prosecutors can likely offer him some additional incentives, such as a promise to turn down possible charges against his family members. The indictment relates to benefits to relatives of Weißelberg. Weisselberg’s son Barry reportedly lived rent-free in a New York apartment while he was an employee of the Trump Organization, a feat for which he paid no income tax.
Prosecutors sometimes offer what is known as “third party cooperation”, ie one defendant cooperates and another receives the benefit. Allen Weisselberg could agree to cooperate in exchange for a promise by the prosecution to reject the charges against Barry Weisselberg. Weißelberg may be ready to throw himself under the bus for Trump, but is he ready to throw his son under the bus too?
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Even if Weißelberg never turns around, the public prosecutor could later force his testimony. His legal risk disappears if he is either convicted or acquitted. At this point he is not entitled to self-incrimination, as he can no longer be charged for matters that have already been negotiated. This means that he could not exercise his Fifth Amendment privilege to avoid testifying.
Even if prosecutors wanted to question him on subjects beyond the scope of his current criminal proceedings, for which he might still receive some exposure and, accordingly, the protection of the Fifth Amendment, they could immunize him. Under New York law, forcing a witness to testify requires transactional immunity, which means that Weisselberg could not be charged with any of the crimes he discussed in the process of providing information about the crimes of others.
Whatever the scenario, after Thursday’s indictments, prosecutors have come one step closer to Weisselberg’s testimony and are working their way up to the top of the Trump organization. It’s a short chain that goes straight to the former president.
Barbara McQuade, a former US attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, legal analyst for NBC and MSNBC, and a member of the USA TODAY Board of Contributors. Follow her on Twitter: @BarbMcQuade