Did Trump lawyer break the law in vicious email attack on critic?

Story highlights

  • Paul Callan: Marc Kasowitz went way over the line in his email response to a critic
  • A law makes aggravated harassment a crime, but the courts have struck it down, he says

Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.

(CNN)President Donald Trump's personal lawyer let loose a verbal barrage of obscenities and threats against an unidentified person who had the temerity to suggest in an email that Marc Kasowitz should resign as the President's personal lawyer.

The words of this unidentified person, who apparently learned of a ProPublica article after it was featured on "The Rachel Maddow Show," elicited a stunningly inappropriate response from the President's lawyer. Both Kasowitz and his law firm adamantly deny the truth of the ProPublica story, which trashed his reputation.
In the email exchange that occurred between 9:30 and 10 p.m. Wednesday, the sender suggested in the subject line of the email that Kasowitz should, "Resign Now."
    The high-powered attorney behind Trump
    The high-powered attorney behind Trump


      The high-powered attorney behind Trump


    The high-powered attorney behind Trump 02:17
    The personal counsel to the President of the United States replied as follows in a series of emails:
    "I'm on you now. You are f***g with me now Let's see who you are Watch your back, bitch."
    Kasowitz also suggested: "Call me. Don't be afraid, you piece of s***. Stand up. If you don't call, you're just afraid." This was followed by another missive: "I already know where you live, I'm on you. You might as well call me. You will see me. I promise. Bro."
    The nation should be deeply grateful that Kasowitz is not the President's adviser on North Korean military policy, or we might all be looking for some of the fallout shelters built in the 1950s and '60s.
    A spokesman for Kasowitz says he will apologize for his email response to his critic. The spokesman, Mike Sitrick, noted that "while no excuse, the email came at the end of a very long day that at 10 p.m. was not yet over."
    Kasowitz was quoted as saying, "The person sending that email is entitled to his opinion and I should not have responded in that inappropriate manner. I intend to send him an email stating just that. This is one of those times where one wishes he could reverse the clock, but of course I can't."
    The out-of-control tirade was completely inappropriate behavior by an experienced trial lawyer who prides himself as a tough, take-no-prisoners litigator. Experienced trial lawyers usually develop thick skin and an ability to control their tempers and emotions as a result of many years of courtroom battles replete with bullying judges, difficult clients and often obnoxious adversaries.
    It has often been my own personal experience as a trial lawyer that courtroom bullies who possess a finely honed expertise in the art of humiliating others often have a hard time dealing with attacks directed at them personally.
    Kasowitz's meltdown is an obvious indication of the enormous pressure a lawyer necessarily faces representing not simply the President of the United States but this President of the United States.
    Trump is an individual who has long had the reputation of being a most difficult client, who ignores legal advice about the merits of his many cases, preferring to use the legal system as a weapon to beat opponents into submission by running up ruinous legal costs, thereby compelling favorable settlements.
    This is a tactic that will only work for the very rich. It works an enormous injustice on those with a just cause who lack the funds to oppose a billionaire opponent.
    Kasowitz, who has proudly handled Trump's professional legal bullying for many years, now faces a courtroom opponent with the resources to fight back, the newly appointed special counsel Robert Mueller, not to mention all the law enforcement and intelligence officials the President has insulted and tormented since his inauguration by questioning their competence and patriotism. They will not roll over like rent-controlled tenants blocking construction of a Manhattan skyscraper.
    The real question for Kasowitz is what will be the consequences of wielding his poison pen. There will be no criminal charges because there is no crime. Yes there is a criminal statute in New York and most other states that punishes "aggravated harassment."
    New York Penal Law § 240.30(1)(a) provides that a "person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."
    It looks like Kasowitz's threats, insults and obscenities might add up to a violation of this law, which is a Class "A" misdemeanor punishable by up to a year in prison. The law, however, has been repeatedly struck down by both the New York state courts and federal courts as an unconstitutionally vague restriction on free speech.
    The only other possible way to punish Kasowitz for his temper tantrum would be for the Unified New York State Court System to file a "grievance" charging him with a violation of the lawyer's Rules of Professional Conduct, which would clearly prohibit such insulting, profane and injudicious language if it were used in connection with a court proceeding.
    In this case, however, Kasowitz was not practicing law when hurling his verbiage most foul. He was really acting in a personal, nonlawyer capacity, and it is highly unlikely that the bar would proceed against him, even in a jurisdiction that is so firmly anti-Trump as New York City.
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    Finally, the question presented is: Will the President fire Kasowitz for his brutal pounding of an email critic with his foul and bullying language? I think not. Just ask Rosie O'Donnell and the at least 337 other people Trump insulted via Twitter. Of course, Kasowitz may be fired but not for this behavior, which merely mirrors that of Trump himself.
    The best we can hope for is a swift apology, which Kasowitz has already promised and maybe even a lesson learned about civility by Trump's fierce and intemperate advocate.