Trump’s legal team has filed a defamation lawsuit that actually alleges defamation in a rational way and has the potential to prevail in court. True, the suit wasn’t officially filed on Trump’s behalf, but still, it’s kind of a big deal. Last night, longtime Trump attorney Michael Cohen filed two defamation lawsuits – one in federal court against Fusion GPS and another in state court against BuzzFeed. In the lawsuits, Cohen himself is the plaintiff, and he seeks $100 million in damages to compensate him for the damage to his own reputation. The federal claim against Fusion GPS, which I will focus on, filed in the Southern District of New York, was accompanied by the following tweet:
— Michael Cohen (@MichaelCohen212) January 10, 2018
Fusion GPS is the oppo-research firm that commissioned the “Steele dossier,” which has caused Trump a world of hurt since its having become partially public. In the past (both recent and distant), Donald Trump has used defamation lawsuits as a bully tactic, often wielding them (or at least threats of them) against anyone who criticizes him; a common theme among those threats has been their willful blindness about the difference between “facts” (which legally, could form the basis of defamation) and “opinions,” (which cannot). But COHEN v. BEAN LLC, d/b/a FUSION GPS, and GLENN SIMPSON, is not the Trump litigation machine operating as usual course. For starters,Trump himself is not even a party to the action, but rather, Cohen is. Furthermore, the case has been filed in federal court, which is rather unusual for a defamation case. The basis of federal jurisdiction is diversity of citizenship under 28 U.S.C. § 1332, which simply means that Cohen and his defendants are domiciled in two different states, and that his claim exceeds $75,000. The underlying tort law used in the case won’t be any different based on the federal jurisdiction, but perhaps there is a procedurally strategic reason for Cohen’s having chosen federal court that will become clear later.
The Complaint paints the picture of Michael Cohen as victimized lawyer:
“Under this report, Plaintiff is alleged to have an inappropriate and possibly criminal relationship with the Russian government stemming from his wife’s familial relations with a Russian property developer. None of these allegations are true. Plaintiff does not have any relationship with Russian officials and his father-in-law is not a leading property developer in Moscow; he has only been to Russia once. In fact, Plaintiff’s father-in-law does not even own a vacation home in Sochi, nor has he ever been there. Additionally, Plaintiff’s wife was born in the Ukraine region and immigrated to the United States over forty (40) years ago; she has never been to Russia. And the harm caused by the allegations is obvious: Plaintiff is being accused of maintaining a valuable role in candidate Trump’s allegedly unlawful relationship with Russia and, in the context of the rest of the Dossier, the report implies that Plaintiff was vital in the unlawful manipulation of the 2016 U.S. presidential election. This has also harmed Plaintiff’s reputation in his profession as an attorney-at-law.”
On its face, the Complaint does what one would expect any solid defamation lawsuit to do – compile a list of factual allegations made against the plaintiff, state that those allegations are untrue, have been publicized, and have caused the plaintiff financial harm. In many defamation cases, the allegations of financial damage are tenuous at best; however, Cohen covered that base in his pleading, stating that Fusion GPS’ distribution of the dossier caused damage to his “professional reputation, current business interests, and the impairment of business opportunities.” In fact, Cohen’s complaint goes a step farther, and accuses Fusion GPS of defamation “per se” – a sub-class of defamation claims that lowers a plaintiff’s burden and assumes financial damage when that has been publicly accused of committing serious criminal activity.
Cohen even anticipated and dismissed a potential defense argument — that he is a public figure, and that therefore, any defamation must be committed with “actual malice” to be actionable. To that, Cohen alleged that Fusion GPS published untruths “which they knew to be false and/or published with a reckless disregard of whether it was actually true,” — in other words, it acted with just the malice necessary to sustain a claim. Legally speaking, this all means that Cohen’s lawsuit boils down to just one issue: whether the dossier’s contents as they relate to him are true or false.
Obviously, the truth or falsity of the contents of the Steele dossier is something inappropriate on which to speculate; only those with first-hand knowledge of the dossier’s contents could (and should) confirm or deny the their allegations against Cohen, Trump, or anyone else. But if we’re talking defamation lawsuits, this one has as good a shot as any. It’ll survive summary judgment and make its way through the court like any other typical lawsuit. Whether Cohen can provide sufficient evidence to support his claim is another matter entirely — but from a purely legal standpoint, Cohen’s complaint makes defamation allegations that make logical, legal sense.
In some ways, Cohen’s lawsuit against Fusion GPS could be a spectacular PR tool for President Trump and his cohorts. Given that the substance of the alleged defamation is the Steele dossier and Russian collusion in the 2016 election, any win on Cohen’s part will be surely be spun into a broad-scale finding that Trump has been unfairly persecuted since last year. Michael Cohen was hardly the point of the Steele dossier, but by positioning himself as the central complainant of this lawsuit, he might become Trump’s champion in a media trial-by-combat. However, the entire thing could also blow up in Trump’s face. When there are lawsuits, there is discovery. And when there is discovery, information flows in a manner not necessarily controllable by the litigants. If, during the course of discovery, some (even if not all) of the Steele dossier is proven true with regard to Donald Trump’s misdeeds, Michael Cohen might find himself rethinking the wisdom of litigating as his client’s proxy.
There are also three letters in the Complaint that I couldn’t help but notice:
“Namely, Defendants published statements accusing Plaintiff of playing a key role in the conspiracy formed by candidate Donald Trump’s presidential campaign team and the Russian government to rig the 2016 U.S. presidential election through meeting with Kremlin officials in Prague…”
“The” conspiracy – not “a” conspiracy. The choice of words takes collusion out of the land of hypotheticals and places it squarely in existence. The drafting surely could have been an oversight, but could also pave the way for Cohen to argue that the dossier was accurate as related to Donald Trump, but inaccurate about Cohen’s own role in Russian collusion. Lawyers, by our very nature, process the potential for conflict at light speed. There’s no way Michael Cohen put his own name in the case caption without considering the prospect of his own interests one day conflicting with Trump’s. Lawyer vs. client showdowns always come with some fireworks, and that one would be no different.
This is an opinion piece. The views expressed in this article are those of just the author.