08 Oct The Roy Cohn Defense

“Donald Trump is a master of The Roy Cohn Defense. Will it continue to work for him?” – The Lonely Realist

SPOILER ALERT: That would be a good bet.

Roy Cohn was a famous New York lawyer who gained notoriety in the 1950s as lead counsel for red-baiting Senator Joe McCarthy. He thereafter founded a legal business that made him a legendary New York fixer representing a broad range of the rich and famous (including leading Mafia figures as well as Aristotle Onassis, Rupert Murdoch and many others). His greatest success, however, was as Donald Trump’s mentor, tutoring the future President during his formative years as a real estate developer. Cohn referred to Donald Trump as his best friend, stating that Trump would phone him for advice 15-20 times/day. Cohn’s methods were controversial and gave rise to indictments naming him as an alleged perjurer, witness tamperer and financial fraudster, none of which stuck to Teflon Roy …, that is until 1986 when a 5-judge panel disbarred him for misappropriating clients’ funds, lying, and pressuring a client to amend his will, the court describing his actions as “particularly reprehensible.” Cohn’s response was to deride the judges as a “bunch of cheap politicians” and a “bunch of nobodies,” disdainfully saying that he “couldn’t care less.” He died from AIDS complications shortly thereafter after continuously denying that he had AIDS … and, oh, by the way while owing the IRS more than $7 million in unpaid taxes …, which was quite a lot of money in 1986. After his death, the IRS seized virtually all of his assets. According to his friend and former client Roger Stone, Cohn’s “absolute goal was to die completely broke and owing millions to the IRS.” Donald Trump reportedly was the last person to speak by phone to Cohn before he died.

Cohn had a no-holds-barred defense strategy of doing whatever it takes to win. Attack. Delay. Deflect. Deny. Distract. Lie. Never give an inch. No “Rule of Law” for Roy Cohn. As one of the attorneys in his office confirmed, “Roy couldn’t have given less of a shit about rules.” Clients were told to look for the weakest link and exploit it. Find a scapegoat … or two … or three. Daze and confuse. Witnesses forget. Witnesses die. Witnesses wear out and give up the fight. Witnesses become allies. The Roy Cohn Defense never stopped attacking, deflecting, distracting and delaying. Famed attorney Arthur Liman wrote that the Roy Cohn Defense required being “an intimidator and a bluffer.” Cohn, he said, was “famous among lawyers for winning cases by delays, evasions, and lies.”

Cohn was the top fixer of his era, but nevertheless died bitter and disbarred, defeated by the legal system he had flaunted and the disease he had denied. Donald Trump has been a far more capable practitioner of the Roy Cohn Defense. Trump’s four years in office saw a total of 30 investigations, including 10 federal criminal investigations, 8 state and local investigations, and 12 Congressional investigations. Like his mentor, Trump beat them all. He successfully stymied his opponents by attacking, deflecting, denying, evading and lying. However, since leaving office, his legal challenges have become more daunting. Most notably, he today is facing a criminal probe in Georgia concerning his attempt to overturn the 2020 Georgia vote, civil fraud and criminal fraud actions in New York City and State addressing an alleged 15-year scheme to defraud New York of tax revenue, and FBI and Justice Department investigations alleging that when leaving office he took and, despite repeated requests for their return, unlawfully retained classified documents (as previously discussed by TLR here).

None of the current legal actions will reach final judgment before Election Day 2024. There simply isn’t enough time for them to wind their ways from discovery to motion practice to deposition to trial to verdict to final judgment. The former President nevertheless continues being an adept practitioner of The Roy Cohn Defense. For example, in his deposition by the NYS Attorney General, Trump declined to answer any substantive questions, reportedly invoking his Fifth Amendment right against self-incrimination more than 400 times – the wheels of justice indeed will grind slowly.

Legal actions take time. Moreover, even a conviction stemming from a NY or a GA prosecution wouldn’t significantly impact or deter the former President. A criminal prosecution with respect to the retention of the Mar-a-Lago classified documents, however, would be problematic. Because the Mar-a-Lago facts appear straightforward and provable, the Justice Department may have little choice but to proceed with an indictment. What we know is that (1) President Trump was warned by his White House lawyer that it would be unlawful to retain classified documents, (2) the President instructed that various documents should be taken from the White House to Mar-a-Lago, (3) the then-former President in late 2021 personally sorted through those documents, (4) both as President and former President, he repeatedly told advisers that the documents were his and not the government’s, (5) a number of his advisers pressured him to return the documents, (6) both the National Archives and the Justice Department told him that his possession of the documents was unlawful and asked for their return, (7) he directed his legal counsel to lie when certifying that all requested documents had been returned, and (8) he ignored a subpoena and attempted thereafter to conceal the documents. If the former President were to be prosecuted under the Presidential Records Act, the Espionage Act, and/or for obstruction of justice and if the foregoing indeed is an accurate rendition of the facts, the Justice Department would only have to prove that certain of the documents indeed were classified. The burden then would shift to the former President to prove that he had previously declassified them, a seemingly impossible task.

There would be serious risks should the Justice Department proceed with a prosecution. An indictment and conviction of Donald Trump could ignite a Constitutional Crisis, particularly if the former President were to be re-elected in 2024. A final verdict is not possible before January 20, 2025. If Trump were to be the Chief Executive – responsible for all Federal law enforcement – at the time of such a verdict, he has made it clear that he would treat the outcome as illegitimate and unenforceable, thereafter taking action to root out his opponents. After all, Donald Trump has a no-holds-barred defense strategy of doing whatever it takes to win.

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