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LAWFARE – The Weaponization of the legal system to attack your political adversary and his or her allies.

May 15, 2024

Robert J. Costello, Esq.
Partner, Davidoff Hutcher & Citron, LLP
605 Third Avenue New York, New York

I have been a lawyer for 51 years. During that time, I have been involved in many different types of cases, but I have never seen the types of politically motivated cases that have been brought in this Presidential Election season.

These political cases are being used as a weapon of war to damage, defeat or impede political adversaries and their allies. Instead of political warfare, it is lawfare, and it is a cancer upon our collective judicial system. Lawfare is a stain on both the Department of Justice and District Attorney Offices throughout the nation.

Lawfare is a disaster for the rule of law. It is a disaster for Democrats and Republicans alike. Neither of those parties will hold power forever and when the opposite party takes control, it is not hard to imagine what will take place and it is not good for our country. What is not good for America should be opposed by all Americans.

Let me give you a little perspective about the different world I used to live in. I was a federal prosecutor in the United States Attorney’s Office for the Southern District of New York. At one point, I was the Deputy Chief of the Criminal Division of that Office. We handled many different types of cases during my time in the office. We handled quite a few cases involving alleged corruption by public officials. Some were Democrats, some were Republicans, some might have been from a lesser political party. Not once was the defendant’s political party ever mentioned. It simply did not matter. It was not a factor ever considered with respect to the issue of whether to bring charges or not. That was the way it was in the Southern District of New York and likely every other US Attorney’s Office at that time.

Unfortunately, I cannot say the same thing for today. Prosecutors are supposed to investigate crimes and prosecute those who commit them—not announce targets first and investigate until they can bring some charge, no matter how tenuous. But these days, you see individuals running for prospective office who claim the if you elect me, I will bring down this public figure or that public figure who disagrees with my political philosophy.

Understand that to destroy a political rival you need not convict that person of a crime, all you must do is leak the fact that the individual is being investigated for a particular crime, thereby destroying his or her reputation and causing that individual to incur legal fees to defend themselves. The net result is, if you can destroy their reputation and bankrupt them with legal fees, you have effectively eliminated or cancelled your opposition without ever convicting them of a crime or getting a civil judgment against them. This has to stop.

This is what’s going on right now in Manhattan in a case entitled People v. Trump. This is a case my old office, the SDNY, turned down because they assessed that Michael Cohen, the so-called star witness, was totally unworthy of belief.
Let me talk about my experiences over the past five years, particularly with Michael Cohen.

You may wonder how a lawyer can discuss his interactions with a former client. The short answer is that Michael Cohen, for reasons that I will explain, waived the attorney-client privilege and the duty of loyalty of a lawyer to a client.

Why would he do something like that? Well, Mr. Cohen, who was then represented by different counsel, pled guilty to eight counts in an indictment in the Southern District of New York, seven of which had nothing to do with President Trump and indeed pre-dated the first meeting between Cohen and Trump. As a part of this plea negotiation, Mr. Cohen decided he would attempt to cooperate to reduce his upcoming sentencing. And Cohen then took a foolish step by lying that he had evidence that Rudy Giuliani and I had conspired to obstruct justice by dangling a pardon for him to keep his mouth shut about Donald Trump. That was totally false and utter nonsense.

The AUSAs (Assistant United States Attorneys) told Cohen that to investigate his allegation, he would have to waive the attorney client privilege, otherwise I would not be able to answer the questions that the US Attorneys would ask. Cohen, with counsel present, waived the attorney client privilege in writing. Later, after I testified in the Manhattan grand jury, Cohen falsely stated on national

television that he had not waived the privilege. I was able to conclusively refute this by showing the written waiver on camera on a different national show, one hour later.

After the US Attorney’s Office supplied me with the waiver, they requested an extensive document production, which I complied with, and after that, two Assistant US Attorneys and two FBI agents interviewed me for approximately 3 and ½ hours. I told them that Cohen’s allegation was a lie and proved it with the numerous emails, text messages and contemporaneous memos to the file. After that, the US Attorney’s Office never dealt with Cohen again—having concluded, rightly, that he was a habitual liar and totally unreliable witness. That office chose to not bring any charges against President Trump. Clearly the correct decision. But the same cannot be said for the New York District Attorney’s Office.

After receiving the waiver of the attorney client privilege, I remember watching television and seeing Michael Cohen crowing about what he claimed he was telling the District Attorney and what he was telling the grand jury. The statements Cohen was making about President Trump were diametrically opposed to what Michael Cohen had told my law partner, Jeff Citron, and myself at the Regency Hotel in Manhattan on April 17, 2018.

I knew then that I couldn’t let these inconsistent statements stand. Many people advised me not to get involved, but my conscience would not allow me to stand by and let Cohen tell the District Attorney and the grand jury the opposite of what he told us at a time when he was most vulnerable, indeed suicidal, and desperately searching for “an escape route” as he called it, from the legal difficulties that he knew were coming. That is the reason I decided to contact both Trump’s counsel as well as the Manhattan District Attorney’s Office.

I gave both sides the same written materials that I had provided to the US Attorney’s Office for the Southern District of New York. I asked to meet directly with Alvin Bragg so I could explain the exculpatory material I had, to prevent what I saw as a potential miscarriage of justice. Alvin Bragg refused my offer. Then the Trump lawyers demanded, as was their right, for the District Attorney to put me in front of the grand jury. The District Attorney had no choice under the law but to put me in front of the grand jury. Because I was trying to show that I was being fair to both sides, I offered to participate in a zoom meeting with members of the District Attorney’s prosecution team on the Friday before my grand jury appearance on Monday.

The Zoom meeting was with approximately 8 Assistant District Attorneys. It began with one ADA saying: “assume we have read all your materials, what do you want to say?” Hardly a warm greeting for someone trying to help them get to the truth. All the collective group did was sit and listen as I described the many lies told by Cohen. But most importantly, I told them how, at a time when Cohen was suicidal and desperately looking for an escape route, I advised him that the SDNY thought he had committed crimes and that he might have evidence they could use for a prosecution of President Trump. I explained to Cohen how he was not the target of the investigation but was a bump in

the road and that the US Attorney’s office would run over him if it led them to Donald Trump. I explained that if Cohen had truthful information that would implicate Donald Trump, I could get him out of his legal troubles by the end of the week, if he cooperated against Donald Trump. I emphasized that any information Cohen could give would have to be truthful, otherwise it was useless.

I did this numerous times during our first two-hour meeting. Each time Cohen said to me: “I swear to God, Bob, I don’t have anything on Donald Trump.” Cohen must have said this at least ten times because I kept coming back to it from different approaches. Cohen kept on saying: “Guys I want you to remember, I will do whatever the F… I have to do, I will never spend one day in jail.” I even said to Cohen at one point: “Michael, now is the time to tell the truth and cooperate if you want your legal problems to disappear.” Cohen would again reply: “I swear to God, Bob, I don’t have anything on Donald Trump.” After hearing this several times, I said to Cohen:

“Michael, think about this…you said the other night you were on the roof of the Regency and seriously contemplating jumping off because you couldn’t handle the pressure of the upcoming criminal case, so I want you to consider: isn’t it easier to cooperate against Donald Trump if you have truthful information, than it is to kill yourself?” Cohen’s answer was once again the same answer: “I swear to God, Bob, I don’t have anything on Donald Trump.”

Through further cross examination Cohen told me that he knew there was money missing from the Trump Inauguration fund, but that Donald Trump had nothing to do with it and didn’t even know about it. I then asked about the NDAs that Cohen had referenced earlier when he said: “I can’t believe they are trying to put me in jail for an NDA.” He was referring to the Stormy Daniels NDA. I noted that there is nothing illegal about an NDA, it happens all the time to settle civil claims. I then had Cohen explain to Jeff Citron and myself what his involvement was with the NDA. Cohen said that a lawyer for Stormy Daniels approached him and said Daniels was going to allege that she had sex with Donald Trump unless Trump was willing to buy her silence with a non-disclosure agreement. Cohen decided that while he didn’t believe the allegation, he thought the story would be embarrassing for Trump, and especially for Melania, so he decided he would take care of this himself.

The reason and his motivation for this became obvious upon further revelations by Cohen regarding the fact that when Trump’s inner circle went to Washington after the Inauguration, Michael Cohen was left behind in New York. Cohen stated that he thought that when Trump became President, that he, Michael Cohen, could become Attorney General of the United States or at least Chief of Staff to the President. As delusional as this may be, Michael was angry that he had been left out. Procuring this NDA would be a way to ingratiate himself with Donald Trump and save embarrassment for Melania because he knew that Donald Trump was very concerned about not doing anything to embarrass Melania.

Cohen then explained that for that reason he negotiated the sum of $130,000 in exchange for the NDA. When asked if Trump had any knowledge of this, Cohen told me no. When asked whether Cohen got the $130,000 from Trump or any Trump entity or friend, Cohen again said no. When asked if this was from Cohen’s own money, Cohen said no. He was asked where, then, did he get the money and Cohen explained he took out a HELOC Loan because he didn’t want anybody to know where the money came from. He specifically said he didn’t want Melania to know, and he didn’t want his own wife to know since she handled the family finances, so if Michael took out $130,000, his wife would know immediately and would ask questions.

Throughout this two-hour interview, Michael Cohen made clear that this payment to Daniels was his own idea, designed to try and get him back into the inner circle of Trump people in Washington. Cohen also said at least twenty times “Guys, I want you to know I will do whatever the f… I have to do; I will never spend one day in jail.”

The point is when Michael Cohen was presented with the opportunity to implicate Donald Trump in exchange for eliminating his own enormous legal problems, he repeatedly said he had nothing truthful on Donald Trump.

Now, after going to jail, Michael Cohen is on a revenge tour because he blames Donald Trump for the loss of his law license and the fact that he did go to jail. The U.S. Attorney for the Southern District of New York saw this and acted properly. The Manhattan District Attorney took a different route to become famous and to “get” Trump.

Michael Cohen is simply not a credible man. Throughout the time that we were providing legal advice to Michael Cohen, he lied repeatedly both about consequential and inconsequential details. Whenever it suited his purposes, Michael Cohen showed no hesitation to lie. The pattern is consistent that Cohen lies when he thinks it is to his own advantage but tells the truth when it is to Michael Cohen’s own advantage. It was clearly to Cohen’s own advantage if he had truthful information about Donald Trump to cooperate and reveal that information to aid himself by eliminating Cohen’s own major legal problems that were causing him to consider suicide.
With respect to the ongoing Trump trial, I point out the following observations:

The allegations in the indictment are barred by the statute of limitations for the misdemeanor of making a false entry in business records; it is only elevated to a felony with a longer statute of limitations if the misdemeanor was committed to conceal another felony. Here is the rub—the indictment does not specify what the alleged other felony is. Current speculation based upon the testimony elicited is that the other felony is election fraud. That theory fails for two additional reasons, first the Manhattan District Attorney has no jurisdiction over the 2016 federal Presidential election; second the alleged false entry in the Trump organization books and records took place in 2017. How can an act committed in 2017 influence an election that ended in November 2016? The answer most recently propounded is that it was a conspiracy formed in 2015. That would be logical IF there was a conspiracy count in the Indictment—but there is not. There are 34 false entry Counts and nothing more. Tjhere is one defendant Donald Trump and no one else.
Finally, there is no doubt in my mind that in the event of a conviction, this case will be overturned on appeal for a variety of legal errors, perhaps the most egregious is the testimony of Stormy Daniels. That testimony was clearly irrelevant to the alleged crime of a false entry in the books and records. The payment and the NDA have never been disputed. The defense moved to prevent Daniels from testifying for that reason. Then after the New York Court of Appeals issued a ruling a little more than a week ago overturning Harvey Weinstein’s conviction because the trial judge let in prior similar act evidence whose only purpose was to smear the defendant, the defense raised the issue again and sought a mistrial. When Judge Merchan was informed of this he said it wasn’t applicable.
In the Trump case, they are seeking a conviction by any means necessary. They do not care if it is overturned on appeal because that will likely not happen until after the election. In the meantime, they will have effectively interfered with the 2024 Presidential election and perhaps influenced some voters because of an ill-gotten conviction.

This is the very definition of lawfare. It is happening in Manhattan before our very eyes. I hope members of this Subcommittee are as outraged about it as I am and I hope there is something you, as our national policymakers, can do to remove the taint of lawfare from our justice system. I look forward to answering your questions.