Ex-prosecutor warns Trump's "vengeance" lawsuit against Michael Cohen could blow up in his face

"Trump is giving Cohen a clean second shot at exposing" him through discovery, writes Dennis Aftergut

By Gabriella Ferrigine

Staff Writer

Published April 17, 2023 12:42PM (EDT)

Michael Cohen, the former personal attorney to President Donald Trump, departs his Manhattan apartment for prison on May 06, 2019 in New York City. (Spencer Platt/Getty Images)
Michael Cohen, the former personal attorney to President Donald Trump, departs his Manhattan apartment for prison on May 06, 2019 in New York City. (Spencer Platt/Getty Images)

Former President Donald Trump's $500 million lawsuit against former attorney Michael Cohen could backfire, former federal prosecutor Dennis Aftergut warned in an op-ed in Slate

Trump filed the lawsuit last week on the heels of his indictment in Manhattan over his role in hush money payments made to adult film actress Stormy Daniels in the final stretch of the 2016 presidential campaign. The former president pleaded not guilty to 34 felony counts of falsification of business records. Cohen, who pleaded guilty to federal charges in connection to the payment, later testified that Trump reimbursed him for the payment and is expected to be a key witness at the trial.

Trump's suit accuses Cohen of "multiple breaches of fiduciary duty, unjust enrichment, conversion, and breaches of contract by virtue of Defendant's past service as Plaintiff's employee and attorney."

"Vengeance is in Trump's blood," Aftergut wrote, citing two "tip-offs" that the suit is retaliatory in nature.

"First, Trump only sued Cohen after being indicted. Trump could have brought his legal action at any time over the three years since Cohen publicly testified against Trump to Congress in 2019," Aftergut wrote. "Second, Trump's lawyers tripped all over themselves trying to explain why they brought their complaint now. Cohen's conduct, they said, had 'reached a proverbial crescendo and has left [Trump] with no alternative but to seek legal redress.'"

But the lawsuit could backfire, he warned.

"Trump just opened a pathway to discovery — and information for the public — that Cohen had sought in a different lawsuit which a judge reluctantly felt compelled to dismiss last November because of Supreme Court law limiting personal actions against government officials," Aftergut wrote.

"In December 2021, Cohen sued Trump for orchestrating the [Cohen's] reincarceration. In November 2022, federal Judge Lewis Liman lamented that Trump's status as a government official in 2020, when the reincarceration occurred, blocked courts from providing any relief against Trump."

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Now, Aftergut wrote, Trump's "quest for payback" is providing Cohen with new ammunition. 

"Trump is giving Cohen a clean second shot at exposing the same truth through discovery," he wrote. "As a defendant in the new suit, Cohen should be entitled to subpoena documents and testimony to show a jury that the action against him is part of a pattern and practice on Trump's part of silencing his enemies through misuse of the law, adding, "Cohen may also have a countersuit to bring if he believes that Trump has retaliated against his right to voluntarily speak to prosecutors. In any case, neither party is likely to emerge unscathed in this latest legal battle between the two."

Cohen's lawyer, Lanny Davis, told CNN last week that "Trump is once again using and abusing the judicial system as a form of harassment and intimidation against Michael Cohen. Mr. Cohen will not be deterred and is confident that the suit will fail based on the facts and the law."

Cohen vowed on his podcast last week to bring a counter-suit against the former president.

"I can't believe how stupid he was to have actually filed it. He should have listened to the lawyers that told him 'it's a mistake'. He's now opened himself up to everything that he refuses," he said, per The Independent. "The documents are stupid. They don't make any sense. He's gonna get countersued, there's no doubt about that one, for what he's doing."

By Gabriella Ferrigine

Gabriella Ferrigine is a staff writer at Salon. Originally from the Jersey Shore, she moved to New York City in 2016 to attend Columbia University, where she received her B.A. in English and M.A. in American Studies. Formerly a staff writer at NowThis News, she has an M.A. in Magazine Journalism from NYU and was previously a news fellow at Salon.

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Brief Donald Trump Michael Cohen Politics Stormy Daniels