A few weeks ago, President Trump made news (again) when he complained about his former attorney agreeing to cooperate with federal prosecutors. He said that Cohen’s action was “called flipping and it almost ought to be illegal.” The president’s off-the-cuff criticism drew attention to a practice on which prosecutors have relied for years.
“Flipping” refers to the practice of persuading a person under investigation to provide information on their associates in exchange for a reduced sentence. This form of cooperation may involve persuading a lower-level member of a criminal organization to provide evidence or testimony against someone higher up in the organization. Prosecutors argue that getting an organization’s foot soldiers to cooperate may be the only way to reach those at a higher level. Only insiders have the necessary information to explain the organization’s inner workings (and to connect those workings to crimes); and, those on the organization’s lower levels are less responsible for its actions, so cutting a deal with them is less problematic. Because the practice is useful, it is also common. According to constitutional lawyer and CNN legal analyst Page Pate, “flipping” (or cooperating or “snitching”) is “so ingrained [in the federal criminal justice system] that the entire system would soon collapse if it disappeared.” By offering a reduced sentence in exchange for cooperation, prosecutors can gain access to information they wouldn’t otherwise have.
Of course, persuading a witness to cooperate has its drawbacks – a potential witness might misrepresent how much he knows or embellish his account believing it will help him obtain leniency. Thus, while prosecutors treat “flipping” as a valuable (and necessary) tool, criminal defense attorneys have long argued that the practice results in less reliable testimony. Cooperating witnesses know that the prosecutor ultimately decides whether and how much to reduce their sentences, so they may be inclined to craft stories that the prosecutor wants to hear. And, the inducements to cooperate can be substantial – prosecutors can reduce a cooperating witness’s sentence by years. However, despite the controversy and the president’s protests, it’s unlikely that flipping will become illegal any time soon.
