Trump v. Cohen: The Same Mistake, Over And Over Again

Liz Dye posted an interesting analysis of Trump’s new lawsuit here at Above the Law.

But I had a couple of different thoughts.

First, as you would think Trump (or his lawyers) know by now, when a person files a lawsuit, the defendant has the right to depose the plaintiff. In his new lawsuit, Trump complains (in the Fifth Cause of Action, for conversion) that Cohen acted wrongfully in connection with the payment to Stormy Daniels.

What’s going to happen when Cohen’s lawyers get the right to ask Trump about the Daniels payment during a deposition? Either Trump answers the questions — and likely incriminates himself in the Manhattan DA’s pending criminal case — or Trump refuses to answer the questions by asserting the Fifth Amendment right to avoid self-incrimination. Cohen can then tell the jury (in the civil case between Trump and Cohen) that invoking the Fifth Amendment implies that Trump’s answers to the questions, if he’d given them, would have hurt his case. Either way, Trump loses.

Thus: The new Trump lawsuit will either be dismissed by a court before it gets to the stage of taking depositions, be dismissed voluntarily by Trump himself before the lawsuit gets to the stage of taking depositions, or result in a complete disaster for Trump when his deposition is taken.

This is really “Lawsuits 101,” which you’d think Trump would have learned by now: Do not file a lawsuit when you cannot endure the resulting discovery.

Here’s my second thought about the new lawsuit: If you were working for the Manhattan DA’s office, and you were wondering how Trump’s lawyers would cross-examine Cohen during the upcoming criminal trial, you’d read the complaint in the new lawsuit. Trump’s lawyers have plainly been thinking about the many ways they’ll be able to discredit Cohen on the witness stand. And now we know just what Trump’s lawyers are thinking: They’ve laid out in the complaint all the stuff that they’ll use against Cohen on cross-examination. (The New York criminal trial won’t occur until a year or more from now, and things will evolve by then. But if you wanted to know the state of Trump’s current thinking, the lawsuit gives it to you.)

Lastly, on the merits of the new Trump lawsuit: I’m a lawyer. I understand my professional obligations. And I say almost nothing about things that I learn about my clients’ legal affairs. I learned that information in confidence; those conversations are privileged; it would violate my ethical obligations if I revealed them.

So what did Cohen do when he got crosswise with Trump? Delighted by his new-found fame, he wrote a couple of books, and launched a series of podcasts, and became a ubiquitous talking head on television to blab about damn near everything he did while acting as Trump’s lawyer. I haven’t looked at everything that Cohen said in his books, and podcasts, and so on, and I have no idea whether Cohen actually said anything that violated his fiduciary duties to Trump. But in the many words that he’s spoken on many subjects over time, he certainly may have discussed topics that were off-limits. If so, then Trump’s gripes would have some merit. (It’s true that Cohen was disbarred several years ago, but your duty to maintain client confidences doesn’t disappear just because you lose your license.  It’s also true that Cohen had a right to defend himself when he was being pursued criminally by prosecutors. But Cohen has spoken an awful lot of words, on an awful lot of Trump-related subjects, that might easily go beyond the thing for which he was sent to jail.)

In the end, both of these blabbermouths — Trump and Cohen — talk way too much for their own good. Cohen will be a witness in the trial against Trump. Every word that Cohen speaks is possible fodder for cross-examination during that trial. I’m sure the New York prosecutors have asked Cohen to restrain himself. But Cohen can’t help himself.

And Trump is on the receiving end of at least one criminal case and multiple civil cases. The best thing he could do in his legal defense would be to stop talking. He can’t help himself either.

Words, words, words. Both Trump and Cohen will ultimately eat them. You saw it here first.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.