An Article
by Jenna Ellis
1. Plea agreements are often, by definition, legal fiction.
In the criminal law world, the Bureau of Justice Statistics reports that of the felony cases that reached conviction, more than 95 percent of these convictions occurred through a guilty plea rather than trial and verdict. This varies by jurisdiction, but the numbers are high.
Often, plea agreements (also called plea bargains) are reached because the defendant wants to take a lesser, known sentence, rather than risk going to trial, where juries and verdicts are not predictable. Because of the nature of a “lesser” sentence, it is standard practice for a defendant to plead guilty to a crime he or she did not commit simply to benefit from the agreement.
This is known as a legal fiction and happens every day in every jurisdiction in the country. Some argue the practice is rife with problems, but that’s a policy issue for another day. Legal fiction plea bargains do happen and they happen in a majority of cases that end in plea deals. I personally have handled hundreds of cases as a prosecutor and defense attorney where plea bargains were involved.
Why does this happen? Let's say, for example, you’re charged with speeding. You don’t think you were speeding and question the officer’s radar, but really don’t want your insurance to go up, so you accept the prosecutor’s offer to plead guilty to a broken headlight. In exchange for the plea, the prosecutor will drop the charge of speeding, your insurance won’t go up, and you’ll just have to pay a small fine.
So, you stand in front of a judge and say, yes, you signed the agreement stating you’re guilty of a broken headlight on your car. Is that true? Nope. Everyone in court knows that, but everyone also knows that you’re agreeing to plead guilty in exchange for the benefit of the agreement.
Is Cohen benefiting from this plea? Absolutely. And even if he says in front of a judge in open court and under oath and recites the nursery rhyme “cross my fingers,” it doesn’t make his plea any more than an exchange for a pretty sweet deal, considering what he was facing.
2. Plea agreements are not confessions.
Stating guilt in the context of a plea agreement is not the same thing as a confession. Pleading guilty is a legal conclusion where the defendant may “waive a factual basis” — meaning, it’s fine with the court if the charge the defendant is pleading to doesn’t match the reality of what happened. Your headlight wasn’t actually broken, but you still pleaded guilty to the charge of a broken headlight.
A confession is a factual account of what the person remembers happening. Sometimes during the sentencing hearing, a defendant will choose to make a statement about what actually happened, regardless of whatever charge they pleaded guilty to and were convicted of, usually to try to convince the judge of remorse or mitigating reasons why the person should receive a lesser sentence. In the context of a sentencing hearing, this is called an allocution.
Cohen’s sentencing hearing is set for Dec. 12, and at that time he may or may not make a statement. Even if he does and in some way implicates Trump, consider the context. He’s benefiting from the plea agreement and his credibility at this point is a big zero. Any statements would still have to be properly weighed for veracity, be admissible in court, and even if he was at some point called to testify, it’s common to be cross-examined on the motive and benefit for accepting a plea bargain and making such statements.
In any other context that wasn’t so politically charged, most juries see right through this. How many crime dramas and movies depict the all-too-common “jailhouse snitch” that is a star witness for the prosecution, and then his story falls apart because he’s doing it just for his own benefit?
Cohen’s plea, standing alone, is nothing short of a self-interested deal. And that’s pretty much what he’s known for outside the courtroom too, which is how he got into this whole mess.
3. Plea agreements are not evidence of crimes or verdicts of guilt.
Plea bargains happen instead of trials. There is no jury, no testimony, no evidence, and no verdict. There are no 12 angry men in a room weighing the facts and determining what really happened.
Mark Levin expressed it well on Fox News to Sean Hannity: “Just because a prosecutor says that somebody violated a campaign law doesn’t make it so. He’s not the judge, he’s not the jury,” Levin said. “We didn’t adjudicate anything. It never went to court.” He’s right.
Because plea bargains are not confessions and are often legal fiction, they shouldn’t be used as evidence of someone else’s possible guilt. It’s very possible that part of the reason this particular plea agreement was offered to Cohen was for the optics of “implicating” Trump, as some media coverage has suggested.
So really, who cares what Michael Cohen pleaded to? Those who are politically biased against Trump and self-interested care, sure. But no one who really understands the legal system is excited about this. In the emotional fervor of the media reports, we should not forget that the rule of law and constitutional protections are in place for very good reasons; namely, so that justice, not politics, happens in a court of law.
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