Inside a High-Profile Plea Bargain Negotiation – Part I

The New York Times published a fascinating account of the plea bargaining of Allen Weisselberg, the Trump Organization CFO.  This was unusual because details of plea bargaining processes usually are kept private.  This process included the very active participation of the trial judge, who made suggestions and offered to keep Mr. Weisselberg’s sentence relatively short if he settled – and threatened to order him into custody immediately if found guilty at trial.

The Hill newspaper noted that the plea bargain was an “oddity” – just a “plea deal,” not a “cooperation deal.”  So Mr. Weisselberg is not obligated to cooperate in any prosecution of Donald Trump or others – except the Trump Organization.  But if he testifies at that trial (assuming that it goes to trial), he will be required to testify truthfully, which could produce damaging evidence against Mr. Trump.

While Mr. Weisselberg hasn’t agreed to cooperate in other cases, he also hasn’t gotten an immunity agreement that he wouldn’t be charged for unrelated crimes.  A former prosecutor said, “This is not a traditional cooperation agreement.  If he’s doing less, then he’s getting less.”

In any case, if the judge determines that he isn’t fully truthful in a trial of the Trump Organization, the judge could increase his sentence and he even could be charged with perjury.  So it’s too soon to fully evaluate the effect of this agreement.

Of course, there are many advantages to settling cases instead of going to trial.  But in some cases, there is a great public interest in a public presentation of evidence of serious allegations and defenses.

I think that this is one such case.  So I’m sorry that it was settled.

The Trump Organization has not settled its case and this public interest could be satisfied if it is put on trial.

However, the NYT article indicates that the judge is anxious to avoid a trial and so it is quite possible that the Trump Organization will eventually settle as well.  In that situation, the plea agreement presumably would require the Organization to admit certain facts on the record.  But this is not an adequate substitute for a public trial.

In Part II, Cynthia explains why this is just the latest case illustrating how the criminal justice system favors rich and powerful parties.

Here are excerpts from the NYT article:

Allen H. Weisselberg, one of Donald J. Trump’s most trusted lieutenants, stood before a judge in a Lower Manhattan courtroom on Thursday and admitted that he had conspired with the former president’s company to commit numerous crimes.

Mr. Weisselberg’s guilty plea, which followed more than a year of the Manhattan district attorney’s office pressuring him to cooperate in a broader investigation of Mr. Trump, painted a damning picture of the beleaguered company, which now faces significant financial penalties if it loses its own trial on similar charges.

But for prosecutors who have long sought to indict Mr. Trump, Thursday’s hearing was something of a consolation prize.  Mr. Weisselberg refused to turn on Mr. Trump himself, something prosecutors had hoped he would do since they charged him with 15 felonies last July.

Under the plea deal, Mr. Weisselberg must pay nearly $2 million in taxes, penalties and interest after accepting lavish off-the-books perks from Mr. Trump and his company, including leased Mercedes-Benzes, an apartment on Manhattan’s Upper West Side and private school tuition for his grandchildren.

He also must point the finger at his longtime employer, the Trump Organization, at its trial in October.  In exchange, Mr. Weisselberg, who was facing years in prison, is likely to receive a five-month jail sentence, and with time credited for good behavior, he might serve as little as 100 days.

The deal emerged after weeks of pitched back-and-forth negotiations.  They culminated in a crucial meeting on Monday, Mr. Weisselberg’s 75th birthday, when his lawyers gathered with prosecutors in the judge’s chambers, according to people with knowledge of the matter.

An examination of how the deal took shape, based on interviews with a half-dozen people knowledgeable about the plea negotiations, underscores Mr. Weisselberg’s bottom line:  He would not betray Mr. Trump. For now at least, that unflinching loyalty to a family he has served for nearly a half-century has helped stymie the larger effort to indict the former president.

The interviews also highlight the intense negotiations between Mr. Weisselberg’s lawyers and the district attorney’s office — and the previously unknown role played by the judge, Juan Merchan, to guide the talks — once it became clear that the Trump Organization would refuse to sign a plea deal of its own.  Had the company agreed to plead guilty, the judge had offered to impose an even shorter sentence on Mr. Weisselberg, the people said.

Even though he did not secure Mr. Weisselberg’s cooperation [to testify against Mr. Trump personally], and Mr. Trump appears to be personally unscathed, Mr. Bragg can still declare the plea a victory.  Prosecutors now can point to Mr. Weisselberg’s admissions that he conspired with the Trump Organization — weighty evidence against the company — when they face off at trial.

In the Weisselberg case, a deal proved elusive for nearly a year after his indictment. But in May, one of Mr. Weisselberg’s lawyers, Ms. Mulligan, sent a letter to the prosecutors that helped get the process moving.

Soon after, Mr. Weisselberg added Mr. Gravante to his legal team, and he conveyed a willingness to negotiate behind the scenes.

The first step came in mid-June in the judge’s chambers.  Seated around the judge’s conference room table and couch, each side argued the strength of its  case, with Mr. Gravante seeking probation for Mr. Weisselberg if he struck a plea deal.

Susan Hoffinger, who is overseeing the case as the head of Mr. Bragg’s investigation division, argued that Mr. Weisselberg would need to serve time in state prison.  For the most significant crime he was accused of, the minimum allowable sentence if prison time was imposed was one to three years.

It was then that Justice Merchan, a former prosecutor who has been on the bench for more than a decade, offered a crucial piece of guidance to Mr. Weisselberg’s team:  He said he did not think that white-collar criminals deserved to be spared prison time.  And if Mr. Weisselberg  was convicted, the judge warned that he would order him into custody that same day.

The only way to avoid serving time behind bars, the judge indicated, was if Mr. Weisselberg cooperated and pleaded guilty.

That advice prompted a final attempt to persuade Mr. Weisselberg to provide any details on the way Mr. Trump valued his hotels, golf clubs and other assets.

Mr. Weisselberg insisted that Mr. Trump had done nothing wrong, and that he would rather go to jail than fabricate a story about him.  But he did come up with something — that Mr. Trump would occasionally draw a circle around the valuation of an asset on his annual financial statement, adding a question mark beside the number.  But Mr. Trump, he said, did not order anyone to inflate the numbers.

When Mr. Weisselberg’s lawyers presented this scant information to the prosecutors in mid-July, they were not impressed.

The negotiations had hit a wall.  But Mr. Gravante had a proposal:  He offered to try to persuade the Trump Organization lawyers to accept a plea deal, on the condition that Mr. Weisselberg receive a one-month sentence.  Justice Merchan, also seeking to break the impasse, agreed to impose a three-month sentence on Mr. Weisselberg if he and the two Trump Organization entities pleaded guilty in the coming weeks.

But Mr. Trump’s company refused to consider pleading guilty to felony charges.

It appeared as if a deal might not materialize until a breakthrough came in recent days. The prosecutors made a new offer:  They would be willing to seek only a six-month sentence for Mr. Weisselberg if he pleaded guilty to all 15 felonies, including that he conspired with the company — a move that would tip the scales against the Trump Organization at its October trial.  The prosecutors also asked that Mr. Weisselberg’s sentence be imposed after the Trump Organization’s trial, providing them with continuing leverage over him.

When Mr. Weisselberg’s lawyers met with the prosecutors and the judge on Monday, Mr. Gravante pushed for an even shorter sentence, arguing that the Trump Organization’s refusal to plead guilty should not be held against his client.  The judge proposed five months, of which Mr. Weisselberg would probably serve 100 days.

The deal was accepted later that day.

author

Cynthia Alkon

Cynthia Alkon joined the faculty at Texas Wesleyan University School of Law in 2010. She was an assistant professor of law at the Appalachian School of Law from 2006-2010. Prior to joining academia, Professor Alkon was a criminal defense lawyer and worked in rule of law development in Eastern Europe and Central… MORE

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