We don’t have to wait until the New York case against former President Donald Trump goes to trial to see what at least one of his defenses will be. Manhattan District Attorney Alvin Bragg indicted Trump on charges of falsifying business records. The key witness in that case appears to be Michael Cohen, Trump’s former fixer and attorney. It therefore strains common sense to conclude that the $500 million case Trump filed Wednesday against Cohen is mere coincidence.
Despite his claims that others weaponize the legal system against him for political purposes, that is precisely what Trump has done, and appears to be doing here.
Filing a case against Cohen is a classic Trumpian move. Trump uses lawsuits like stump speeches. Despite his claims that others weaponize the legal system against him for political purposes, that is precisely what Trump has done, and appears to be doing here. Filing a lawsuit, even one that may later be tossed out as frivolous, allows Trump to claim that what Cohen allegedly did to him is so egregious that he had to resort to using the legal system.
Bragg’s case against Trump essentially hinges on the idea that in 2017, when Trump made payments to Cohen, those payments were not for legal services as Trump apparently stated, but rather were repayments for hush money payments that Cohen made to Stormy Daniels right before the 2016 election. Cohen’s testimony will therefore play a significant role in that case.
In the suit Trump filed against Cohen, he accuses Cohen of “multiple breaches of fiduciary duty, unjust enrichment, conversion, and breaches of contract by virtue.” Trump is basically claiming that Cohen lied about him in public, in books, in podcasts and in other media appearances, and that this breached legal obligations Cohen owed to Trump. But Trump has also alleged that Cohen revealed information covered by the attorney-client privilege.
Hence Trump appears to allege that Cohen divulged truthful information about him that is covered by the attorney-client privilege, but also that Cohen spread numerous falsehoods about him. These two arguments may prove to be at odds.
Cohen had yet to respond to the suit as of Wednesday afternoon. And it is too early to truly assess the legal merits of this particular case other than to say that, at first blush, proving that Cohen spread lies about Trump may be more difficult than alleging a violation of the attorney-client privilege. This is not to say any of the claims alleged here could survive a motion to dismiss. But in a moment of inescapable irony, it appears Trump is trying to hush up the person previously in charge of making his hush money payments. If Trump feels his best legal strategy is to undermine Bragg’s key witness, that may indicate the weakness of the other arguments we will see inside the courtroom. As I’ve previously mentioned, Bragg’s case appears winnable. Cohen is not the perfect witness; he has pleaded guilty to felonies. But prosecutors build cases around less-than-ideal witnesses all the time. Perfect witnesses appear in television shows, but not often real courtrooms. Trump’s suit against Cohen may show us no more than how nervous Trump is about the criminal case pending against him.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
