Trump And Stormy Update, In And Out Of Court
LOS ANGELES – As the legal wrangling between Stormy Daniels, Michael Cohen and Donald Trump continues, there are new developments to report both inside and outside the courtroom context.
In a hearing held Friday, U.S. District Court Judge S. James Otero heard argument on Cohen’s motion to stay the lawsuit filed by Daniels (AKA “Stephanie Clifford”). Attorney Ken White, a former prosecutor, sat in on the hearing and later blogged about it on his site, Popehat.com.
According to White, there were “two themes” central to the hearing, one of which was that “Michael Cohen’s situation is grave.”
“Judge Otero — a federal judge for 15 years, who has seen thousands of federal criminal cases — repeatedly commented that it was clear from the search of Cohen’s office and subsequent proceedings before Judge Kimba Wood in New York that Cohen faced a strong probability of prosecution,” White wrote.
White quotes Judge Otero as saying it is “substantially likely some kind of criminal action will be filed” against Cohen in the wake of the recently conducted search by law enforcement of his office and hotel room.
The pairing of the criminal investigation targeting him and the civil lawsuit pertaining to the nondisclosure agreement Cohen executed with Daniels has put Cohen “in a bind,” as White puts it. On the one hand, it’s clear the NDA is part of what the FBI is investigating and it “would be imbecilic to (do) anything but assert his Fifth Amendment privilege against self-incrimination in answer to all questions about that subject.” On the other hand, White notes that defending against Daniels’ claims would require Cohen to answer questions to “defend the validity and enforceability of the contract.”
Should Cohen take the Fifth in responding to questions in the civil case, he “almost certainly loses the civil suit and the contract is voided,” White writes.
Oddly, while Cohen’s attorneys have asked the court to stay the case on the basis he might be forced to take the Fifth in response to questions from Daniels, they did not file a declaration from Cohen to that effect – a disconnect White believes is part of a public relations consideration, rather than a legal one.
“Ultimately Judge Otero didn’t order (Cohen) to file a declaration, but gave him until next Wednesday to do so, and strongly implied that doing so was necessary to win a stay,” White wrote of Otero’s actions at Friday’s hearing.
Cohen isn’t the only one whose PR maneuvering has been inconsistent with his legal interests, however; as White noted in his post, “Daniels’ public behavior – and the behavior of her attorney, Avenatti – were just as adverse to their legal interests.”
“One of the factors in deciding whether to stay the case is whether the stay would prejudice Daniels’s interest,” White explained. “How, asked Judge Otero, is Daniels prejudiced, when she’s repeatedly told her story on TV, and her lawyer has repeatedly been on TV to talk about the case? Hasn’t she necessarily ignored the alleged chilling effect of the contract?”
Judge Otero asked pointed questions of both parties, White reports, adding that the judge was “well prepared and skeptical of both sides, a model of what you want an independent judiciary to be.”
The upshot of the hearing is that Cohen has been given until Wednesday to file a declaration supporting the request for a stay and further establishing that he intends to take the Fifth with respect to any questions Daniels’ attorney may ask. Daniels will then have 24 hours to file a rebuttal to Cohen’s declaration, assuming he does file one.
Meanwhile, in the court of public opinion, adult performer Jessica Drake backed up Daniels’ claim about being threatened by a man who warned her to stay quiet about her alleged affair with Donald Trump.
“She actually told me about the threat twice,” Drake said in an interview with Good Morning America. “So, the first time she told me about the threat was shortly after it happened. She relayed the experience to me. I said something like, ‘I’m so sorry, I can’t even imagine. What are you going to do?’”
Drake, who has accused Trump of sexual impropriety, also is among the people named in the contested nondisclosure agreement as someone to whom Daniels had already disclosed information about her alleged affair with Trump, prior to signing the agreement.
When Drake first came forward with her accusation about Trump, the Trump campaign called the claim “totally false and ridiculous.”
“Mr. Trump does not know this person, does not remember this person and would have no interest in ever knowing her,” the campaign said in the statement.
While Drake has said she isn’t trying to sell her story and has no intention of suing Trump, her attorney, Gloria Allred, seems to have left the door open to the latter possibility, should Trump unleash on Twitter or in other public comments about Drake, as the President is wont to do when other public figures upset him.
“If he gets enraged and upset and says something about Jessica that is, in fact, defamatory, then we’re gonna need to review our legal options,” Allred said.