Getting defendants to ‘flip’ is key tool in going after the kingpin, experts say
The practice of allowing criminal defendants to cooperate, or “flip,” and get reduced punishment in exchange for their testimony against others, which President Trump criticized on Wednesday, is a valuable, commonly used tool in a prosecutor’s tool box, experts say.
“It’s called flipping and it almost ought to be illegal,” Trump said in an interview with Fox News on Wednesday.
But getting people to cooperate and provide evidence against people higher up in criminal organizations has proven crucial in the pursuit of justice, experts say.
“The reason that prosecutors focus on the top person is, first, that they are considered to be more culpable, more guilty, more responsible,” said Harvard Law School professor Alex Whiting.
“They are both committing crimes and directing others and organizing others to commit crimes. So their responsibility is greater. They’re more at the center of the operation than at the lower level or periphery,” said Whiting.
As a matter of law enforcement strategy, too, he said, “The only way to bring down a criminal organization, a gang or a terrorist group, or a political or corporate group, that is committing crimes is . . . by taking out the top people.”
Lower-level people are “easily replaced and the organization will continue to commit crimes,” said Whiting, a former federal prosecutor whose career has also included leading prosecutions at the International Criminal Court at The Hague
Cooperation agreements are “happening every single day in federal courts around the country,” he emphasized, calling it the “bread and butter” of federal prosecutors who are focusing on organized complex criminal activity.
Painting a scenario that would sound familiar to any consumer of crime dramas, he said that ringleaders typically try to insuxlate themselves from exposure so “their work is unseen on the street.”
And that makes cooperation “a necessary tool because the only way you can get to the top people is by the cooperation of the insiders,” he said.
Veteran Boston defense attorney Stephen Weymouth said, “That’s what prosecutors do, especially in the federal system: They indict lots of people, and they try to see how far it takes them.”
Claire Finkelstein, a professor at the University of Pennsylvania Law School, said, “Cooperation agreements are necessary in criminal cases because often the best witnesses to a crime are fellow criminals, namely individuals who conspired to commit the crime in the first place with the defendant.”
“The tricky thing about relying on a co-conspirator is that you are depending on a fellow criminal to tell the truth about one of his own. That often opens the prosecution up to attacks about the truthfulness of the testimony,” Finkelstein said in an e-mail.
Whiting acknowledged that cooperation has its risks and has to be “used carefully.”
Trump’s comments, which critics say were almost Mafia-like, came as speculation swirled about whether Michael Cohen, his former attorney, and Paul Manafort, his former campaign manager, might cooperate with special counsel Robert Mueller’s ever-advancing investigation, which is looking into links or coordination between the Russian government and Trump’s 2016 campaign, and any related matters.
So far Mueller has brought more than 100 criminal counts against 32 people and three companies. In addition, Cohen has pleaded guilty to charges that began with evidence uncovered by Mueller.
Trump also said in the Fox interview, “I know all about flipping, 30, 40 years I have been watching flippers. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go.”
“It almost ought to be outlawed. It’s not fair,” he said.
Globe correspondent Jeremy C. Fox contributed to this report.