What prosecutors want from the Trump Organization’s CFO

Allen Weisselberg, the longtime chief financial officer of the Trump Organization, likely knows a lot about that company’s finances and machinations. He has worked with and for the Trump family for nearly half a century. That potentially makes him — now a defendant in New York’s criminal tax case — an important witness against other Trump Organization individuals who may be charged in the future.

Many commentators have discussed whether he can be “flipped” — ostensibly to provide information to prosecutors so that they can charge and convict former President Donald Trump. I do not know of a precise definition of flipping, though it generally means that someone with criminal exposure (and that most assuredly now includes Weisselberg) agrees to provide truthful information to prosecutors about others in return for some consideration, such as a lesser charge or a reduced sentence.

Lower level conspirators tend to flip against higher level conspirators. Generally, prosecutors and agents work their way up the criminal chain, rather than down it. But we need to keep a few things in mind before deciding that Weisselberg can be flipped, will be flipped, or even should be flipped.

July 10, 202101:56

First, Weisselberg is now a defendant in a criminal case. Of those who cooperate with prosecutors, most do so before they are charged, some do so after they are charged, and a few do so after they are convicted. He has pleaded not guilty and will get his “day in court” if that is ultimately what he prefers. He is absolutely entitled to that, and to a presumption of innocence during his trial. Though prosecutors prefer cooperation sooner rather than later, they may have to wait for Weisselberg.

Second, most witnesses tell the truth. That does not mean, of course, that all witnesses tell the truth. There are, shockingly, liars among us. And many people are truthful but reluctant to cooperate — nobody wakes up hoping to be questioned by the FBI. That said, most people in most cases tell the truth. Thank goodness for that, because the criminal justice system is predicated on people telling the truth, to both investigators and to juries. But, if Weisselberg does not tell the truth, then he becomes virtually useless as a cooperator. That could have already happened privately with investigators during debriefings before he was charged, for all we know, or it could happen at a trial if he takes the stand and dissembles.

Third, the truth from Weisselberg might help — or hurt — the former president, his boss. We should be agnostic about where truthful information leads us. If it exculpates Trump, so be it. If it inculpates him, so be it. Though outcomes matter, the process is paramount — we have to get to the right place in the right way, with valid and reliable information. Let the chips, as long as they are honest chips, fall where they may.

Of course, and fourth, prosecutors could simply ignore Weisselberg if, for instance, he lies or refuses to cooperate. They could try to build cases against others without him, using documents and other witnesses. That could be difficult given Weisselberg’s apparent centrality to the Trump Organization, but it is certainly not impossible. Indeed, he might never cooperate or might never provide truthful information, even if it is in his best interest to do so. He could be tried and convicted and sentenced, and take all of his knowledge implicating others to jail with him. Some people – though relatively few — choose that path.

Weisselberg is likely an important witness, but because he has already been charged and because he has a constitutional right to trial by jury, we may not learn what he knows for a very long time. Or, we might never learn it. We do not know if he can be flipped, will be flipped, or should be flipped. The only thing we should care about getting from him — if we get anything at all — is the truth, the whole truth, and nothing but the truth (yes, those are three different things), whether that truth exculpates or inculpates others. Doing justice in every instance means seeking a conviction or closing a case and walking away, as the evidence dictates.