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Will Roy Cohn’s Trump strategy mean his downfall?

By Hudson Brooklyn
Will Roy Cohn’s Trump strategy mean his downfall?

Twice impeached, convicted on 34 counts, tried in two federal criminal courts, ordered to pay hundreds of millions of dollars in civil penalties: former President Donald J. Trump has a longstanding, close relationship with the law—a personal, up-close look at the American justice system that spans 50 years and thousands of court cases. Trump's approach to the law also includes a pattern and practice of distorting that system to his own advantage and to the detriment of anyone who stands in his way. It's unlikely we'll see a resolution to the various cases pending against Trump before the November election, but we don't have to wait until Jack Smith speaks before a jury in Washington to understand how the former president uses the law. One might need a reminder, though. In a limited series for Amicus, award-winning investigative journalist Andrea Bernstein looks at “The Law According to Trump.” Bernstein began the series with a conversation with Jim Zirin, former U.S. Attorney and author of Lead Plaintiff: A Portrait of Donald Trump in 3,500 Lawsuits. Their conversation has been edited and condensed for clarity.

Andrea Bernstein: Let's talk about how this all started – and your answer is largely Roy Cohn. Who was he and why did he have such an influence on Trump?

Jim Zirin: Roy Cohn was chief adviser to Senator Joseph McCarthy. He was a communist hater. After McCarthy was discredited, Roy Cohn returned to New York and acquired all kinds of clients: gangsters, nightclub owners, businessmen. Eventually he was indicted in federal court. He was indicted three times. The first time for obstruction of justice in an attempt to rig a criminal case in the Southern District of New York. After two trials he was acquitted. The second charge was conspiracy to bribe a public official, with the bribe changing hands in the U.S. court where he was tried in the first case.

Cohn had a lawyer named Joe Brill. In the third case, Joe Brill was questioning all the witnesses as usual, and then, as closing arguments were about to begin, he suddenly complained of chest pains. As if on cue, the rescue team came into the courtroom and carried Joe Brill out. The judge, Inzer Wyatt, who was from Birmingham, Alabama, raised his hands and said: What should we do? We have been in court here for a month! Who will take stock?

Cohn did not take the stand, but the judge allowed him to plead on his own behalf, which, as far as anyone could remember, had never been done before. For a day and a half, Cohn made his plea without notes. He presented himself to the jury as a great patriot and fighter against the communist threat. He was acquitted.

So here was a man who knew how to outsmart the system.

In 1973, Roy Cohn met Donald J. Trump in a nightclub in New York City. Trump told Cohn that he and his father had been sued by the Civil Rights Division of the U.S. Department of Justice for housing discrimination. The government had developed a good case. Trump and his father went to a number of respected lawyers in New York, and they all said: What you should do is settle the case. You will get a slap on the wrist. You will agree to stop discriminating without admitting or denying the allegations. And you can carry on with your business and your life. Trump didn't like that advice. Cohn's advice was to fight. Trump liked that advice.

What you really have to understand here is that Roy Cohn had a script and Trump learned from it.

Trump first used this “witch hunt” accusation in the housing discrimination case. Cohn, who knew some of the columnists and placed the articles selectively, also taught him how to negotiate the case in the press. That's exactly what Trump did in the criminal case in New York this spring: he leaked articles to the right-wing press to create a public atmosphere that was hostile to the state of New York (the plaintiff in the case) and favorable to Trump.

That's Trump in the courthouse – he's organizing these press events, he's standing behind these barriers in this kind of cavernous marble hallway, and he's attacking the prosecutors, he's attacking the case, he's calling it a witch hunt, saying it's politically motivated, baseless – he says he's going to fight it. All of these things go back more than 50 years to the early 1970s when he met Roy Cohn and basically took over this completely.

That's right. And in the New York case, he attacked the judge, even the judge's daughter. He attacked members of the prosecutor's staff. According to Trump, they were all left-wing Trump haters, and the whole prosecution was done for political reasons. There was the big lie that the prosecution was led by Joe Biden, even though it was a state prosecution and even though the Justice Department had absolutely nothing to do with it. They pointed to a former Justice Department lawyer who was from [Alan] Bragg before the Trump case even went to trial. They said this showed that Merrick Garland was involved in the prosecution. That was complete nonsense, but people believe it.

People believe that. And I think that's the special thing about Roy Cohn's strategy – it worked for Trump in many ways.

You've written about how Trump is distorting the adversarial process. The concept of being on trial is deeply ingrained in the American psyche – you should go to court and get the judge to decide. But I hear you saying that's not OK. And I wonder why you think that.

It's not OK if you abuse the process. If you and I had a dispute and there was no court system, we'd have no way to resolve it. We'd be at each other's throats. The purpose of the court system is to resolve disputes in society. So the plaintiff brings his complaint and the courts decide whether it has merit. The plaintiff's goal is to get a judgment in his favor, and the defense's goal is to defeat the judgment. It's not to destroy the defendant or the plaintiff, nor is it to achieve some ulterior goal, whether it's a political or business goal that has nothing to do with the case. That's what tends to happen in Trump cases.

And it's not just that he abuses the process, but every time he does so, he makes the process worse for everyone.

This is also a Roy Cohn playbook. Roy Cohn was famous for saying, “Fuck the law. Who's the judge?” He wanted to debase the legal system. He was afraid of judges – judges gave him trouble. The way out was to either figure out how to denounce the judge or how to put the judge under pressure. Trump does that all the time.

Let's turn to the presidential immunity case decided by the U.S. Supreme Court in the last legislative session. Many legal analysts and legal experts expected the Supreme Court to rule differently in this case. Trump's immunity claims were so outlandish, and the DC Circuit Court of Appeals agreed. But in true Trump fashion, he reached for the gold ring, so to speak, and got it. It reminded me of his tactics described in your book in the civil cases you discuss. They seem crazy, but sometimes he won them.

The immunity case is a prime example of Cohn's “Fuck the law. Who is the judge?”

Nowhere in the Constitution does the President have immunity. In all the debates the Founding Fathers had about the President, they were very clear: They did not want a king who was above the law. They wanted a President who was a servant of the law. And that is very clear, because as a servant of the law, the President takes an oath to preserve, protect and defend the Constitution. So the law is above everything, not the President.

But what happened in the immunity case was that six judges, three of whom were appointed by Trump, quickly said the president was not above the law, but he too Is above the law. This is where Chief Justice John Roberts' provisional position comes into play, because he said there is a difference between official and private acts.

As for private acts, the court concluded that the president is not above the law. So I suppose if the president had an affair with a woman and her jealous husband came to the White House and the president shot the husband in the Oval Office, that would be a private act and he would not be above the law. But if he ordered Navy SEALs to do it, that would be an official act and he would be above the law because that would be a presidential act.

So this decision is outrageous. It will, God willing, be overturned by a future court. It is a case that really gives the president a free hand.

Although Roy Cohn was obviously Donald Trump's favorite lawyer and he continues to use all of Cohn's techniques to this day, there was ultimately a rift between the two.

Cohn was gay and had a friend who Trump had promised an apartment to. The friend had AIDS and Trump paid for the apartment for a while, but then he started sending bills. Roy Cohn said, “Donald Trump pisses ice water.” So even Roy Cohn lost out to Donald Trump. But your book ends on an optimistic note?

It is a quote from Roy Cohn's book in which he said, “No public figure can survive indefinitely at the center of controversial debate.” This is very true of Donald Trump.

Do you still think that's true: “No public figure can survive indefinitely at the center of controversial debates”?

I think that is politically true and I think that will be true for Trump as well. The media built him up and as we saw in the Roman Colosseum, the thumbs up can quickly turn into thumbs down. The cult will fall apart and people will go with their Life.

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