In Washington, it is all too common for public figures to exchange uncorroborated allegations. Often the most telling factor is to wait to see who actually sues for defamation. We are at that point in the controversy surrounding the Buzzfeed story after Trump counsel Rudy Giuliani made what would be arguably defamatory statements against the father-in-law of Michael Cohen on national television . . . if the statements are untrue. The question is whether Fima Shusterman will sue over being called a criminal working with Ukrainian organized crime.
In an interview on CNN, Giuliani responded to attack on Shusterman by President Donald Trump, references that I have previously criticized as highly inappropriate. Yet, Giuliani is correct that Cohen’s credibility is at issue given the harsh view expressed by the Southern District of New York about his lack of cooperation and the reason why he was not allegedly cooperative. Many believe that Cohen is continuing to conceal evidence of criminal conduct by either himself or his father-in-law or both.
Giuliani however went further and said that the father-in-law’s criminal conduct is the reason that the Southern District of New York was critical of Cohen’s lack of cooperation. He stressed “the Southern District of New York, in the plea, wanted him (Cohen) to go to jail and said he’s lying. They don’t buy the special counsel’s approach. They say he’s lying because he’s holding back information that is far more damaging than the lies that he is sharing with them now. Now, what is that information about? It’s about his father-in-law.” Giuliani went on to note that Shusterman is from the Ukraine and suggested that he was not only involved in criminal conduct but may “have ties to organized crime.”
This is an allegation of criminal conduct. Criminal conduct has long been recognized as a per se category of slander under common law torts as well as such categories as moral turpitude and unchastity or impugning professional reputation.
Shusterman ran taxicab businesses in both New York City and Chicago and reportedly may have pleaded guilty to federal income tax fraud related to his New York business. Cohen got involved in the taxicab business through his father-in-law. I have previously written about the sleazy taxi business deals of Cohen and the allegations against his father-in-law. So here is their chance to prove they’re innocent and sue Giuliani who will be allowed to defend his allegations based on truth. While Shusterman may be viewed as a limited public figure subject to the constitutional standard of defamation (requiring proof of actual knowledge of falsity or reckless disregard of the truth), this should be an straight-forward case to show that Cohen was not shielding his father-in-law and that his family has no connections to organized crime. That would actually force a degree of accuracy and accountability in this increasing raw and nasty dialogue.
I do not expect that to happen because the Shusterman has long been accused of criminal practices or associations. However, this issue could well be pursued in Cohen’s upcoming testimony. While the Democrats would object, I expect that there are some prosecutors in New York eager to hear Cohen answer questions about the family taxi business.