Twice impeached, convicted on 34 felony counts, indicted in two federal criminal courts, on the hook for hundreds of millions of dollars in civil penalties: Former President Donald J. Trump has a long-standing, intimate relationship with the law—a personal, close-up view of the American justice system spanning 50 years and thousands of lawsuits. Trump’s dealings with the law also include a pattern and practice of distorting that system for his own benefit, and to the detriment of anyone who stands in his way. It’s unlikely we’ll see any resolution to the various cases pending against Trump before November’s election, but we don’t have to wait for Jack Smith to address a jury in Washington to understand how the former president uses the law. One might, however, need a reminder. In a limited series for Amicus, award-winning investigative journalist Andrea Bernstein delves into “The Law According to Trump.” Bernstein started the series by talking to Jim Zirin, former U.S. Attorney and author of Plaintiff in Chief: 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 all of this got started—and your answer to that is in large part Roy Cohn. Who was he and why was he so influential on Trump?
Jim Zirin: Roy Cohn was chief counsel to Sen. Joseph McCarthy. He was a red-baiter. After McCarthy was discredited, Roy Cohn came back to New York and he acquired all kinds of clients; mobsters, nightclub owners, businessmen. Eventually, he was indicted in federal court. He would go on to be indicted three times. The first time was for obstruction of justice in trying to fix a criminal case in the Southern District of New York. After two trials, he was acquitted. The second indictment was for conspiracy to bribe a public official, with the bribe money changing hands in the United States courthouse where he was standing trial on the first case.
Cohn had a lawyer named Joe Brill. In the third case, Joe Brill cross-examined all the witnesses as usual, and then suddenly, when summations were supposed to begin, he complained of chest pains. As if on cue, the EMT team came into the courtroom and carted Joe Brill out. The judge, Inzer Wyatt, who came from Birmingham, Alabama, threw up his hands and said: What are we going to do? We’ve been here on trial for a month! Who’s going to sum up?
Cohn had not taken the stand—but the judge allowed him to sum up on his own behalf, which had never been done before in anyone’s memory. For a day and a half, Cohn delivered a summation without notes. He portrayed himself to the jury as a great patriot and as a warrior against the communist threat. He was acquitted.
So here was a man who knew how to beat the system.
In 1973 Roy Cohn met Donald J. Trump at a nightclub in New York City. Trump told Cohn that he and his father had been sued by the United States Department of Justice’s Civil Rights Division for discrimination in housing. The government had developed a good case. Trump and his father went to a number of reputable lawyers in New York, and they all said: What you should do is settle the case. You’ll get a slap on the wrist. You’ll agree not to discriminate anymore, without admitting or denying the allegations. And you can go on in business and go on with your lives. Trump didn’t like this advice. Cohn’s advice was to fight. Trump liked that advice.
What’s really important to understand here is that Roy Cohn had a playbook and Trump learned from it.
These charges of “witch hunt” that Trump hurls, he first used in the housing discrimination case. He also learned to try the case in the press from Cohn, who used to know some of the columnists and would selectively place stories. This is what Trump did in the criminal case in New York this spring—leaking stories 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.
This is Trump at the courthouse—he sets up these press availabilities, he’s behind these barriers in this sort of cavernous marble hallway, and he’s attacking the prosecutors, he’s attacking the case, he calls it a witch hunt, says that it’s politically motivated, meritless—he says he’ll fight it. All of these things go back more than 50 years to the early 1970s when he meets Roy Cohn and basically adopts this wholesale.
That’s correct. And in the New York case, he attacked the judge, even the judge’s daughter. He attacked members of the prosecution staff. According to Trump they were all left-wing Trump-haters, and the whole prosecution was being conducted for political purposes. There was the big lie that the prosecution was being directed 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 one former Justice Department attorney who was hired by [Alan] Bragg before the Trump case was even brought. They said this shows that Merrick Garland was involved in the prosecution. It was just total nonsense, but people believe it.
People do believe it. And I think that is the thing about the Roy Cohn playbook—it’s worked for Trump in many ways.
You’ve written about how Trump distorts the adversarial process. The concept of having your day in court is ingrained in the American psyche—you should get to go to the court, you should get the judge to rule. But I’m hearing you say it’s not fine. And I’m wondering why you feel that way.
It’s not fine if you misuse the process. If you and I have a dispute, and if there were no court system, we would have no way of resolving it. We’d be at each other’s throats. The purpose of the court system is to resolve disputes in society. So the plaintiff claims what his or her grievance is and the courts decide whether there’s any merit to it. The plaintiff’s objective is to get a judgment in his or her favor and the defense’s objective is to defeat the judgment. It’s not meant to destroy the defendant or destroy the plaintiff, and it’s not meant to meet some ulterior objective, either some political objective or some business objective, which has nothing to do with the case. That’s what tends to happen in Trump cases.
And it’s not just that he’s kind of misusing the process, but that each time he does this, he sort of degrades the process for everyone.
That’s out of the Roy Cohn playbook too. Roy Cohn was famous for the statement “Screw the law. Who’s the judge?” He wanted to degrade the legal system. He was afraid of judges—judges gave him trouble. The way around it was to either figure out how you could denounce the judge or figure out how you could get the judge in the tank. You see Trump doing that repeatedly.
Let’s turn to the presidential immunity case decided this past term at the U.S. Supreme Court. So many legal analysts and legal experts expected SCOTUS to go the other way in this case. Trump’s immunity claims were so outlandish, and the D.C. Circuit Court of Appeals agreed. But in true Trump style, he kind of reached for the brass ring, and he got it. Which reminded me of his tactics as outlined in your book in the civil suits you discuss. They seem crazy, but sometimes he would win.
The immunity case is the paradigm example of Cohn’s “Screw the law. Who’s the judge?”
Nowhere in the Constitution does it give the president immunity. In all of the founders’ debates about the president, they were very clear: They didn’t want a king who was above the law. They wanted a president who was a servant of the law. And that is quite clear because as a servant of the law, the president takes an oath to preserve, protect, and defend the Constitution. So the law is supreme, not the president.
But what happened with the immunity case was you had six judges, three of whom were appointed by Trump, who were quick to say that the president is not above the law, but also he is above the law. Here’s where the makeshift position of Chief Justice John Roberts comes into play, because he said there’s a distinction between official acts and private acts.
For private acts, the court concluded that the president is not above the law. So I assume 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’s a private act, and he would not be above the law. But if he ordered Navy SEALs to do it, then it would be an official act and he would be above the law because that’s a presidential act.
So this decision is outrageous. It’ll be overruled by some future court, God willing. It’s a case that really gives the president a free pass.
Even though obviously Roy Cohn was Donald Trump’s favorite lawyer, and he uses all of these Cohn techniques to this day, they had a falling out at the end.
Cohn was gay and closeted and had a boyfriend to whom Trump had promised to give an apartment. The boyfriend had AIDS and Trump paid for an apartment for a while, but then he started to send bills. Roy Cohn said, “Donald Trump pisses ice water.” So even Roy Cohn got the short end of the stick from Donald Trump. But your book ends with a note of optimism?
It’s a quote from Roy Cohn’s book, where he said, “No public man can indefinitely survive in the center of controversy.” This applies in spades to Donald Trump.
Do you think that’s still true? “No public man can indefinitely survive in the center of controversy”?
I think that’s true as a matter of politics and I think it’s going to be true of Trump. The media built him up, and as we saw in the Roman colosseum, the thumbs-up can quickly turn to thumbs-down. The cult will break apart and people will go on with their lives.
