Jurisprudence

Giuliani Is Trying to Follow Trump’s Legal Code

James Zirin, a chronicler of Donald Trump’s long history of legal exploits, traces the line from what Trump used to do to win legal battles to what he tried to do in the White House.

Rudy Giuliani shakes hands with Donald Trump at the clubhouse of Trump International Golf Club in Bedminster Township, New Jersey on Nov. 20, 2016.
Rudy Giuliani shakes hands with Donald Trump at the clubhouse of Trump International Golf Club in Bedminster Township, New Jersey on Nov. 20, 2016.
Sipa via AP

On the most recent episode of Amicus, Dahlia Lithwick interviewed James Zirin, author of Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits, about the president’s history of weaponizing the law while trampling legal norms. A portion of their conversation is below, edited lightly for clarity. You can listen to the full conversation, which is the second half of this episode of Amicus.

Dahlia Lithwick: So, we’ve talked a lot about the ways [Donald Trump] weaponizes the law for his business and real estate interests. But the other point you make, which is sort of obvious but subtle, is that he also weaponizes the law to protect his name and his brand. And for that he uses, instead of real estate law, he uses libel, he uses defamation suits, he uses these nondisclosure agreements …

James Zirin: And he uses trademark law. Now, one of the prize cases he brought was against a mother and father who had a small business in Syosset, Long Island. It was called Trump Travel. It was called Trump Travel because they booked bridge tours for people to go on a boat and play bridge. And also, Trump kind of connotes excellence, like Ace Hardware, a primacy.

So, Trump had never been in the travel business in any way, shape, manner, or form. And somehow or other, this was called to his attention. So he sued them to enjoin them from using the name Trump. They lost their life savings defending the case. Eventually it was settled, and the settlement was they had to drop the sign Trump down five points in type, but they could continue to use the name and have it in the window. And then Trump sued them again for violating the settlement agreement. The judge dismissed the case; he said it had been settled and that was the deal.

So I guess this brings me to the ugly underbelly of the book, which is, time after time, he uses his litigation to just grind people down. This is a person who, as you say, almost always punches down, rarely punches up. I’m thinking of the woman in the Trump University suit whose life he destroyed to the point that she just wanted to withdraw, and then he wouldn’t let her withdraw because he wanted to keep destroying her life. And there is a way in which the cost of being in litigation with him—literally the cost, financially, but also the emotional toll and the physical toll and the hours and years of your life given over to this means he wins. Even when he loses he wins. And that is just a disparity of wealth and power that now feels, when I look at it in the aggregate, in the book, baked into the system.

Well, of course, he didn’t win the Trump University case. He settled for $25 million. The students—so-called students—got their money back, or most of their money back. It was an outrageous case. It was brought as a class action, and as you say, he centered his vitriol on the class representative. Now there’s nothing he could’ve achieved in a class action by discrediting the class representative. That’s the way class actions are constructed. And actually, the class representative, her name was Tarla Makaeff, had prevailed in a procedural round against him and had gotten almost a million dollars in legal fees. But he took off on her, and she said she couldn’t stand it anymore emotionally. She wanted to get out of the case. And he took the position, she’s the key witness, she has to testify, and it’s outrageous that she wants to get out of the case. And he opposed it. Eventually, she was allowed by the judge to get out of the case and that she was entitled to get out of the case. And another class representative came in.

So she didn’t really lose—she got a large award in legal expenses and she got her wish to get out of the case. She really couldn’t conduct it anymore, and she couldn’t stand the fact that Trump was trashing her all the time. And he lost that case. And he settled it on the eve of his taking the oath of office, on the advice, I think, that the president of the United States should not have to testify in a court defending himself against fraud.

I wonder if we can talk for a minute about the suit that he brought against Tim O’Brien, the journalist. One of the cardinal sins, if you talk about Trump, is saying that he overstated his wealth, which is something that many journalists did, but Tim O’Brian ended up in a lawsuit for it. And one of the things that happens in that lawsuit is that there’s a deposition. We don’t have that many examples of this, of what Trump does under oath in a lengthy deposition. Right?

Yes. And in one day of deposition, he lied at least 30 times under oath. The deposition was conducted by Mary Jo White, a former United States attorney for the Southern District of New York, and her partner. Trump repeatedly misstated facts about his net wealth, his holdings, his enterprises. And it was a pattern that we see right up to the present day with his, not only lying about facts which are incontestable, but also lying about his having said things, which he is on the record as having said.

Trump loses the case on summary judgment. It’s affirmed in the appellate courts. And then he turns around and brags, Trump, to the Washington Post, he didn’t mind losing because “I spent a couple of bucks on legal fees. They spent a whole lot more. I did it to make Tim O’Brien’s life miserable. I’m happy about it.” So again, he’s putting into words this basic thesis, which is even if you lose, you won, because the money didn’t affect me and he’s poor and I stole his time. That’s the center of the creed, right?

I hope his lawyers got paid because it’s possible he didn’t really spend a few bucks on legal fees.

I’m going to ask you the hard question, which has plagued me from Page 1 of your book, which is, much of what you do is surface that which was kind of known about him all along. When Hillary Clinton says, “You don’t pay taxes,” and he answers, “Because I’m smart,” in the debates, we all say: “Yeah, this is how business is conducted in America. He’s not doing anything that rich people don’t do every day. This is how people get rich.”

We, in a sense, colluded—and I don’t mean we, you and I, necessarily—but I think Americans have fully bought in to the principle that you weaponize the law and lawyers to get rich, and that what he’s doing is in fact no different from what any other rich person does. And that makes him smart. Am I too cynical?

Well, I think it may be slightly cynical. [Roy] Cohn was a notorious tax evader. There was a judgment for $6 million against him for the IRS at the time that he died. He wrote a book in which he said, “No one who is smart pays taxes.” And this was the template for Trump and his attitude, and his father’s attitude, actually. They were notorious flagrant tax evaders. They saw loopholes.

Now, is that smart? Is that how rich people get rich? Maybe it’s true of some of them. But the fact is there were, in my view, so many horrible things paraded before the electorate about Trump in articles in the Washington Post, articles in the New York Times and other media, not even necessarily the mainstream media, people became anesthetized. And maybe some of them are still anesthetized, and they don’t see the evil that’s involved in someone who is willing to violate the law and play the system and who believes that the means justifies the ends. And you see that in this repeated attempt to get foreign help in smearing his political opponents. And he did it in 2016 with the Russians, and he did it, and it came out just this past week. They did it with respect to Ukraine.

And that leads me to the question that I’ve been dying to ask you, which you referenced in the book a couple of times: The single most famous Trumpism when it comes to lawyers is when he bemoans to Don McGahn, he’s trying to get Jeff Sessions to stop the Russia probe. He can’t do it. He’s trying to fire Sessions. He can’t do it. And he, at some point, flings up his hands and says to White House counsel Don McGahn, “Where’s my Roy Cohn?” He wants the lawyer to be the plumber, to just get the thing done. And does that explain why Rudy Giuliani, his personal lawyer, somehow is up to his neck in this conversations with Ukraine in the alleged threat, the quid pro quo to the Ukraine about withholding $400 million in aid? This is not a White House lawyer. This is not a government lawyer. This is his Roy Cohn, who is somehow negotiating with the Ukraine over getting dirt on Biden.

Well, Cohn was a fixer, and I think Giuliani, it might be fairly said, played that role with respect, or tried to, with respect to the Ukrainians. And Trump, like Cohn, liked to talk in code. When I first met Cohn, he was in the anteroom of a grand jury when he was a target of an investigation. And he was going around to the witnesses and raising his open palm to the witnesses as if to encourage them and give them a high-five. He was really saying, “Take the fifth.” So Cohn talked in codes. Michael Cohen testified that Trump talked in codes, and he understood the code. So you don’t want to say anything that’s explicitly incriminating. So you talk obliquely and you say to the Ukrainian president, “Talk to Giuliani.” And Giuliani knew what his mission was. It’s quite obvious. And this is what Learned Hand called the culmination of instances, which—each one is perhaps innocuous, but when you cobble them all together really present a very damning portrait.

It is clear from at least the book that, so far, Trump has been uncheckable by standard legal systems. And that even when he loses, he wins. And even when he goes bankrupt, he wins. And he somehow seems to, like a phoenix from the ashes, rise time and time again from the constraints of the legal system. You point out in your introduction, you’ve been a centrist Republican your whole life. You are not a Trump fan. Is it your view that this impeachment, this fundamentally political process that we launched into this week, is going to be the effective gap-filling check on a president who seemingly cannot be checked by the rule of law?

Well, it appears it may be the only check because the Justice Department has taken the position that you can’t indict a sitting president. So what process is available to check the criminal activity of the president? One of the things that came out of the whole Mueller flap, in my view, is that the executive branch is constitutionally incapable of investigating itself in a way that the outcome of the investigation has any public confidence whatsoever.

But in this case, what’s interesting is, while impeachment has always been called a political process, and undoubtedly because of tribalism there are many Republicans in the Senate who would vote to acquit Trump without hearing any of the evidence—you don’t see many profiles of courage in the United States Senate today. But I think that it’s a legal process as well. And if you listen to Cass Sunstein, at the time of the founding of the Constitution and the founding of the country, it was very well-understood that accepting help from a foreign government to influence the outcome of a federal election would be an abusive power and would be an impeachable offense. Quite apart from the campaign finance law that came later or anything else.

So, I think what I’m hearing you say is to the extent that there is this foundational, inherent, platonic idea of what the law is—it is a truth-seeking enterprise, the adversarial system that you laid out at the beginning, that some version of that truth-seeking is going to now have to be imported into the political branches to do a political act of impeachment. The law has gone as far as it can go. And that if we’re going to start talking about really getting to truth, as opposed to whatever it is we’ve been doing for two years, that’s going to have to happen in the House.

Yes. It’ll start in the House and eventually play out in the Senate. And I think even if he’s acquitted in the Senate, at least a record will have been made of criminal activity and impeachable offenses on the part of the president of United States.