Could it be Ka­sowitz is ac­tu­ally voice of re­straint for Trump?

Kuwait Times - - ANALYSIS - By Ali­son Frankel

Over the week­end, Ax­ios and Bloomberg ran sto­ries about a shakeup in Pres­i­dent Donald Trump’s le­gal team, re­port­ing that long­time Trump lawyer Marc Ka­sowitz of Ka­sowitz Ben­son Tor­res is ex­pected to play a di­min­ished role as the pres­i­dent re­sponds to in­ves­ti­ga­tions of his cam­paign’s ties to Russia. Ka­sowitz spokesman Mark Co­rallo told me in an email on Mon­day that the Ax­ios and Bloomberg sto­ries are in­cor­rect and that Ka­sowitz re­mains the head of Trump’s out­side le­gal team.

Ka­sowitz’s role as out­side coun­sel is dis­tinct from that of newly-hired spe­cial coun­sel Ty Cobb. Cobb will work from within the ad­min­is­tra­tion to co­or­di­nate its re­sponse to Russia inquiries. Ka­sowitz has sa­vored and even pro­moted his rep­u­ta­tion as Donald Trump’s le­gal pit bull, a lawyer as pug­na­cious as his most fa­mous client. When Trump needed a lawyer dur­ing the cam­paign to threaten the New York Times with lit­i­ga­tion, af­ter the news­pa­per pub­lished ac­counts of women who claimed Trump had sex­u­ally ha­rassed them, Ka­sowitz was his man.

When the pres­i­dent wanted to counter tes­ti­mony by fired FBI di­rec­tor James Comey, he had Ka­sowitz an­nounce plans to file a Jus­tice Depart­ment com­plaint against Comey. It may be hard to think of Ka­sowitz, who rel­ishes his tough-guy rep­u­ta­tion, as a force of mod­er­a­tion. But if you look at the record of the client re­la­tion­ship be­tween Trump and Ka­sowitz, there’s a notable streak of re­straint. Trump and Ka­sowitz, for in­stance, never fol­lowed through with li­bel suits against the Times - or against any other news or­ga­ni­za­tion in the last 30 years. (Ka­sowitz did rep­re­sent Trump in his un­suc­cess­ful li­bel suit against Trump bi­og­ra­pher Ti­mothy O’Brien and O’Brien’s book pub­lisher.)

Nor did Ka­sowitz file the threat­ened DOJ com­plaint against Comey. Ac­cord­ing to Bloomberg, the Trump team de­cided the wiser course was to stop at­tack­ing the in­tegrity of the Russia in­ves­ti­ga­tion be­ing con­ducted by Spe­cial Coun­sel Robert Mueller. In fact, the New York Times has been re­port­ing that the pres­i­dent is chaf­ing un­der Ka­sowitz’s ad­vice to keep quiet on Twit­ter and else­where about the Russia case - ad­vice al­most ev­ery de­fense lawyer would en­dorse.

Early Bat­tles

The best ex­am­ple of Ka­sowitz’s rel­a­tively mea­sured ap­proach to lit­i­ga­tion for Trump may be an enor­mous case Ka­sowitz han­dled early in his re­la­tion­ship with the pres­i­dent. In a pro­longed bat­tle against Hong Kong real es­tate part­ners whom Trump ac­cused of un­der­pric­ing West Side real es­tate, Trump re­placed Ka­sowitz af­ter he lost a key mo­tion. Once Ka­sowitz was out, Trump pur­sued tac­tics so ag­gres­sive that they nearly cost him and Ka­sowitz’s re­place­ment a sanc­tion find­ing.

The lit­i­ga­tion stemmed from a 1994 deal in which Trump sold a 70 per­cent ma­jor­ity in­ter­est in res­i­den­tial-zoned real es­tate in mid­town Man­hat­tan, along the Hud­son River water­front, to a con­sor­tium of Hong Kong bil­lion­aires. They main­tained the prop­erty for 11 years, then reached a deal to sell it in 2005 to a joint ven­ture of the Car­lyle Group and Ex­tell De­vel­op­ment Com­pany. The sale price was $1.76 bil­lion, at the time the high­est pub­licly-dis­closed amount ever paid for res­i­den­tial prop­erty in New York.

Trump in­sisted it wasn’t enough. Rep­re­sented by Ka­sowitz, he sued in both fed­eral and state court, of­fer­ing ev­i­dence that New York de­vel­op­ers, in­clud­ing Trump friend Richard Le­Frak, might have paid $3 bil­lion for the prop­erty. The case ended up be­ing lit­i­gated in state court be­fore New York State Supreme Court Jus­tice Richard Lowe. Trump as­serted both di­rect and de­riv­a­tive claims, al­leg­ing among other things that cer­tain of the Hong Kong ma­jor­ity part­ners had re­ceived kick­backs in ex­change for agree­ing to un­der­value the prop­erty.

Judge Lowe put enough early cre­dence in Trump’s side of the story to is­sue an or­der at­tach­ing $1 bil­lion in pro­ceeds from any sale of the prop­erty. But the judge even­tu­ally came to be­lieve the Hong Kong part­ners had sold at a fair price. In 2006, he dis­missed all of Trump’s claims ex­cept for a re­quest to ex­am­ine his ma­jor­ity part­ners’ books and records. Up to that point, with Ka­sowitz rep­re­sent­ing Trump, the lit­i­ga­tion had been fierce but not out­side the bounds of con­ven­tion.

Af­ter Trump lost the 2006 dis­missal mo­tion, how­ever, he re­placed Ka­sowitz with his ap­pel­late coun­sel, Jay Gold­berg. With Ka­sowitz out of the case, the lit­i­ga­tion skipped well be­yond those bounds. — Reuters

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