The media dance between Rudy Giuliani and Michael Avenatti has been amusing. Just this morning Rudy was complaining to Chris Cuomo on CNN for giving so much air time to the “ambulance chaser” as he called Avenatti (which is a step up from last week’s adjective, which was “pimp.”) To that Avenatti tweeted, “Dear Dazed Rudy: Please retire. Today. You had a good run for many years. But you are distracting from that and quickly becoming an embarrassment. A never ending joke. Don’t let this serve as your legacy. The time has come.”
The entertainment factor of the case aside, Avenatti is methodically working towards a goal. He’s doing none other than using the legal system to expose corruption that seems to have bypassed elected government officials, and his plan is working. Politico Magazine:
But perhaps Avenatti is onto something, thanks to a fundamental fact about private civil litigation against high-profile defendants: Although these suits are primarily about this plaintiff against this defendant, they often have powerful secondary effects that take them into realms usually associated with policy, politics, and even public health and safety. Institutional actors as diverse as the tobacco companies and the Catholic Church might have continued their sheltering and denying ways but for the dogged persistence of private litigants. In the Daniels case (or, more accurately, cases, since there is now also a defamation claim against Trump for accusing Daniels of lying about a threat against her in connection with the alleged affair), the public has so far gotten more information, and more quickly, than anything a sclerotic and polarized Congress has managed to unearth about the supposed Trump-Russia campaign. Special counsel Robert Mueller’s investigation might also run into political shoals, but there’s plenty on the table already, thanks to the Daniels suit. Why?
The answer is that the production of information damaging to powerful political and corporate interests is consistently compromised by government’s inability to hold them to account. When the House Intelligence Committee decides to close up shop on its farcically incomplete investigation, there’s not much that can be done about it (unless and until the majority is voted out of office). And if Trump ultimately decides to light the fuse that leads to the explosion of the Mueller investigation, there’s no guarantee that anyone will fix responsibility on him for doing so. It’s not cynical to say that any possible congressional response—even the Senate’s more credible Russia probe—would be made according to calculations about the direction of the prevailing political winds. [,,,]
That’s where civil litigation comes in. As the gadfly Ralph Nader expressed the virtues of the system to me a few years ago: “The civil justice system is the most open, refereed public decision-making forum in the world. Everyone else works behind closed doors. A court of law is open to the press. There’s a verbatim transcript, cross-examination and a trial by jury.” That’s true, but much of the importance of civil litigation to broader political and social outcomes is determined not at trial, but well before. If a case is found to have enough merit to get past a motion to dismiss it (because the plaintiff hasn’t stated a claim that the law will recognize), there will be discovery. That’s where the plaintiff can ask for all manner of documentary and other evidence relating to the claim. And countless cases have demonstrated that the goodies unearthed in that litigation can detonate, exploding-cigar style, on entire industries.
A non disclosure agreement made to a porn star is apparently the mechanism which will provide illumination on issues which the Republican majority in congress would rather keep hidden. The delicious irony in all this is that this case is being tried in the court of public opinion and on television, which is the medium of which Trump believes himself absolute master. He thinks of nothing else but photo ops and ratings. Losing on television will truly bring him low and that will be entertainment such that the angels will fall over laughing.
This is a Creative Commons article. The original version of this article appeared here.