Recently President Trump said that "flipping" a witness to incriminate a prosecutorial target "almost ought to be outlawed," saying that individuals who flip are often untruthful.
This statement raises the important question of whether it should be illegal to offer a witness a valuable consideration for providing testimony, as prosecutors allegedly did with Lt. Gen. Michael T. Flynn.
Interestingly, it is already illegal for a lawyer to do that -- if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client -- even if his testimony is 100% truthful -- that lawyer will be disbarred, prosecuted and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets. These inducements include money, freedom from imprisonment and even life itself.
There are cases in which courts have allowed prosecutors to pay witness's contingent fees -- that is, bonuses -- if their testimony results in convictions. There are cases in which prosecutors have threatened to seek the death penalty unless a witness flips against a co-defendant. There are cases in which prosecutors threaten to prosecute wives, children, parents and siblings of witnesses unless they flip, to offer 10- or 20-year reductions in sentences in exchange for favorable testimony.
No wonder Judge T.S. Ellis, who presided over the first Manafort trial, observed that flipped witnesses sometimes have an inducement not only to "sing" but to "compose" -- that is, to embellish. Michael Cohen may have been composing when he said through his lawyer, that President Trump knew about the Trump Tower meeting between his son (Donald Trump Jr.) and a Russian. Cohen's lawyer has now, commendably, walked back this accusation.
Judge T.S. Ellis (right), who presided over the first Manafort trial, observed that flipped witnesses sometimes have an inducement not only to "sing" but to "compose" -- that is, to embellish. (Image source: Fox News video screenshot)
You might wonder how all this is legal in light of the federal statute that prohibits the payment of anything of value in order to influence the testimony of a witness. Here is what the statute says: "Whoever... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness" is guilty of a felony. [U.S. Code § 201 (c)(2), emphasis added]
A literal reading of the statute would encompass the offers and threats routinely made by prosecutors to secure the testimony of witnesses. After all, it applies to "whoever," and "any," but the courts have ruled that prosecutors are exempt from the words of the statute. Only defense attorneys and their clients are covered by it, despite the broad language.
Several years ago, a U.S. Court of Appeals applied the language of the statue to prosecutors, raising questions about the entire process of paying witnesses for their testimony. But that decision was quickly reversed by a ruling that continued the exemption of prosecutors from the coverage of the statute.
The only requirement is that prosecutors must inform the judge, jury and defense attorneys of all payments and promises made to witnesses. But such disclosure would not be enough to exempt defense attorneys or defendants from the criminal penalties provided by the witness tampering statute. This disparity unlevels the playing field of our adversary system of justice.
Civil libertarians and criminal defense attorneys have long been skeptical of the widespread tactics used by prosecutors to intimidate, induce, buy or rent witnesses. We understand how central this tactic is in the way prosecutors bring cases today. Coupled with the other side of the coin -- under which defendants who go to trial receive multiples of the sentence they would have received had they pleaded guilty -- these twin tactics explain why so few cases today ever get before a jury: Fewer than 10% in federal court. It is far more advantageous to cooperate with prosecutors than to challenge them.
Notwithstanding the importance of these tactics, they should raise troubling concerns among anyone concerned with basic fairness.
So, I welcome President Trump's statement about the unfairness of our present system of flipping witnesses, even though I realize it is somewhat self-serving. Would he and his supporters be equally concerned if a Special Counsel or other prosecutors were using these tactics against his political opponents? Nevertheless, it is important to have these issues raised and debated by all Americans. Today they are being used against Republicans, tomorrow they may be used against Democrats, and every day, they are being used against ordinary Americans caught up in our deeply flawed criminal justice system that relies far too heavily on the testimony of flipped witnesses.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "The Case Against Impeaching Trump," Skyhorse Publishing, July 2018.