Several weeks ago, when Stormy Daniels’ attorney Michael Avenatti was delighting in Donald Trump finally breaking his silence on the $130,000 hush-money payment executed by Michael Cohen, Avenatti made the point that Cohen was about to come under intense pressure as the lynchpin in both the Stormy saga and the Russia probe.
“If this guy doesn’t hold up ultimately,” he observed, “very bad things are going to happen to this administration.”
That was the Thursday before the FBI’s no-knock raid of Cohen’s office and residences that have infinitely increased Donald Trump’s legal jeopardy—expanding it beyond the Russia/election probe and into at least a decade of Trump’s seedy business dealings.
In other words, Avenatti predicted Trump’s fate was about to lie in the hands of Cohen days in advance of the raid that has indeed initiated a tectonic shift in the forces bearing down on Trump’s presidency and, now, also the family business that bears his name. After a year of cascading stories claiming that “All roads lead to…” Michael Flynn, Jared Kushner, Paul Manafort—the Cohen prophesy now stands apart for being manifestly true.
And on Thursday of this week, Avenatti leveled another forecast while appearing on MSNBC’s Deadline:
“I do not believe this president will serve out his term—that’s how serious I think this is.”
“This” appeared to refer to Trump’s entanglement with his own client, Daniels. But let’s face it, the more tantalizing part of his declaration came before the em dash.
The commingling of the Daniels case, which is a civil proceeding, with the criminal investigation that is now advancing in the Southern District of New York, makes it sometimes difficult for non-lawyers (myself included) to track them and their relevance to each other. That legal haze was only made more murky this week by yet another civil proceeding with yet another alleged Trump mistress, who made news when she was freed from a contract that was also intended to silence her, much like Daniels.
Where the civil proceedings of Daniels and former Playboy model Karen McDougal meet up with the criminal investigation led by federal prosecutors in New York is that the payments to them provided at least part of the impetus for authorities to search Cohen’s premises.
But the two civil cases also diverged sharply this week based on the lawyers handling them and presumably the goals of their clients. McDougal sought to be released from a contract with the parent company of the National Enquirer, American Media Inc. (AMI), that prevented her from telling her story to other outlets. AMI had originally threatened to fight McDougal’s lawsuit but, following the Cohen raid, decided settling would be the smarter move rather than going through the process of pre-trial discovery (which could have gotten sticky for Trump, Cohen, and AMI). There’s been some debate about whether McDougal got the best possible deal given the leverage she had following the Cohen raid, but ultimately she isn’t under AMI’s thumb anymore and that seemed to be her primary goal.
Daniels and her lawyer Avenatti, on the other hand, appear to be on a take-no-prisoners mission aimed straight at the Oval Office. When Daniels made an appearance this week outside the New York courthouse where Cohen and his lawyers were battling the criminal case, she put them on notice.
“For years, Mr. Cohen has acted like he is above the law,” she told reporters. “He has played by a different set of rules or, should we say, no rules at all. He has never thought that the little man, or especially women—or even more, women like me—matter. That ends now,” she added, vowing that she and Avenatti would not rest until “the truth” was known to the public.
It’s clear now that Daniels isn’t just talking about her own truth. She’s been sharing a lot of that with Americans in multiple interviews. What she wants is the satisfaction of either a court ruling or a self admission from Cohen and/or Trump that they lied about their entire saga. Any money she might be awarded from her defamation suit seems to be mostly immaterial to her, as she has always claimed. And Team Daniels also certainly doesn’t have the political considerations that Team Trump does, nor is she the least bit be worried about being shamed—that ship sailed a long time ago. That makes her and her attorney, especially “dangerous,” as Avenatti put it.
“We are not going to settle this case under any circumstances that do not involve Mr. Cohen and the president coming 100 percent clean with the American people,” Avenatti said on MSNBC’s Deadline this week. “It’s never going to happen.”
Avenatti says that what emboldened him to pursue this case was what he sees as Cohen’s alarming incompetence, first demonstrated by the badly drafted N.D.A. for Stormy Daniels using a third-party LLC in Delaware, Essential Consultants. It was so badly executed, Avenatti said, he understood immediately that he was dealing with a hack—Trump’s virtual Achilles’ heel. “If someone who worked for me had drafted that N.D.A., they would have been fired on the spot,” he said. “It’s a piece of garbage.”
And that “hack,” who certainly performed other backroom hack jobs for Trump, appears primed at the moment to flip on his former boss, just like Avenatti anticipated. In fact several of Trump’s close confidants warned publicly that Cohen just might go in that direction. First it was longtime Trump legal adviser Jay Goldberg who told Trump that on a scale of 100 to 1, where 100 is fully protecting Trump, Cohen “isn’t even a 1.” By Friday, Roger Stone and his political mentee Sam Nunberg were blabbing to the New York Times about how poorly Trump had treated Cohen through the years.
“Ironically, Michael now holds the leverage over Trump,” Nunberg said.
And here’s where the criminal investigation is exerting more heat on both Cohen and Trump than the civil cases ever could have in isolation. As Noah Feldman writes for Bloomberg:
Until now, Trump personally was in jeopardy only if special counsel Robert Mueller’s team in Washington finds evidence that he knew about collusion between his campaign and Russia in the 2016 election. […]Now, however, the Southern District can investigate potential Trump crimes in any area connected to Cohen.
If Trump is implicated in Cohen’s actions, the Southern District probably wouldn’t charge the president while he’s in office. Current Justice Department guidelines say that the president shouldn’t be criminally charged while in office. (Whether that’s a constitutional requirement is under dispute, and the team that investigated Bill Clinton argued that a sitting president could be criminally charged.)
But the Southern District prosecutors wouldn’t have to charge Trump. They could simply name him as an unindicted co-conspirator while charging Cohen, as a grand jury named Richard Nixon in the coverup of the Watergate burglary.
That would leave Trump with a felony charge hanging over his head that he could later be faced with once he left office. In fact, his best option at that point, as Feldman notes, might be to resign in hopes of getting a pardon from a President Mike Pence. (I apologize for exposing my readers to that thought.)
But for the moment, Trump and Cohen have few options left but to delay or end every suit they can. This week, Cohen chose to “voluntarily discontinue” two defamation suits he had filed against Buzzfeed News and Fusion GPS related to the Steele dossier. Their lawyers also tried to stall federal prosecutors from reviewing the materials seized in the FBI raid, arguing in part that a so-called “privilege team” wouldn’t properly shield documents that fall under attorney-client privilege from investigators. (That strategy hilariously also led to the courtroom bombshell that Cohen has also allegedly done legal work for Sean Hannity.) And in Daniels’ civil suit, Cohen’s lawyers sought to convince a federal judge in Los Angeles to put a temporary hold on the case because if it proceeded, it could reveal information that would implicate Cohen in the criminal proceeding.
Let’s pause here for a second to imagine what might happen if Trump and Cohen do manage to slow down the criminal investigation by getting a so-called “special master” appointed to sift through materials from the raid. By all accounts, that would slow the investigation considerably. And while that would conceivably be in a small “w” win for the pair now, the move would almost surely push the major revelations unearthed by the criminal investigation into the next election cycle: 2020. So there could well be a long-term political downside to succeeding even if there’s a short-term legal upside now.
So what’s next? In the next couple weeks, we are likely to find out whether the federal judge in the criminal case appoints a “special master” to review the seized materials or allows the “privilege team” to proceed instead.
In the civil suit, the federal judge in L.A. has told Cohen’s attorney that if they want to delay the proceeding, Cohen himself must make the claim that moving forward could endanger him in the criminal litigation.
Judge S. James Otero said Cohen needs to file a statement declaring that his Fifth Amendment right against self-incrimination might be jeopardized if the case filed in Los Angeles goes forward.
Cohen had sought to avoid officially invoking the Fifth, so look for it early next week in case you would like to delight in that admission. He has until Wednesday to file.
Additionally, Avenatti is waiting on a ruling from Judge Otero, likely early next month, on his motion to depose both Trump and Cohen. Most people think that’s a stretch, but Avenatti doesn’t seem to think so.
“Absolutely,” he said on MSNBC. “I do think we’re going to take those depositions. We’re not going to be bought off. This is bigger than that.”
It remains to be seen whether Avenatti will get those depositions. But clearly just about everyone who thought Avenatti and Daniels were nothing more than a comical sideshow has been sorely mistaken—their case is at least partially responsible for the game-changing FBI raid that has put the fear of god in Trump.
Outside that L.A. courthouse on Friday, Avenatti made clear that Cohen himself had made a fatal misstep when he had his chance to simply release Daniels from their Nondisclosure Agreement (NDA).
“We made a settlement offer very early on where we said that my client would return the $130,000, if everyone walked away from the NDA,” Avenatti said in footage aired on MSNBC. “They refused that offer and I think ultimately that’s going to go down in history as one of the dumbest decisions made in any piece of litigation in the history of the United States.”
If that decision ultimately contributes to the early downfall of Trump, Avenatti’s statement may not be as hyperbolic as it sounds.