For months I've been trying to explain the ups and downs of the tumultuous lawsuit by Stephanie Clifford, also known as Stormy Daniels, against President Trump and his ill-chosen lawyer Michael Cohen. They should have sent a poet, but here you are stuck with an irritable prosaist.
Yesterday brought a significant new development:1 Michael Cohen, through his attorney Brent Blakely, has filed a motion asking United States District Judge James Otero to issue a broad gag order stopping Avenatti from making prejudicial comments to the press about Michael Cohen and the case. The motion is factually robust but legally anemic, and I suspect it will fail.
First, and most boringly, consider the format, which likely dooms the motion immediately. Attorney James Moo analyzed this aptly on Twitter. Michael Cohen has filed the motion ex parte — on an emergency basis. Normally in federal court, lawyers file motions on schedules set by the local rules. Here in the Central District of California, that means filing your motion 28 days before the hearing date you've chosen. The opposition files their brief 21 days before the hearing, you file your reply 14 days before the hearing, and so on. An ex parte application is a motion outside those rules: it says "judge, drop everything and look at this now!" Lawyers abuse this, particularly now in the age of instant gratification. So local rules require lawyers to explain why they need emergency attention, judges' individual courtroom rules state that requirement even more strongly, and judges get quite vexed when you file them without good cause. Judge Otero is no exception. In fact, in his very first order in this very case, Judge Otero dropped a pointed footnote indicating he didn't want to see unnecessary ex parte applications: "The parties are advised that the instant litigation is not the most important matter on the Court's docket. Requests for expedited proceedings, hearings, and discovery not clearly supported by the record and law are discouraged." Michael Cohen's motion contains absolutely no plausible grounds for needing emergency relief. Michael Avenatti has been ubiquitous in the media for months; there's nothing magical about this week that requires immediate action. (Or is there? Stay tuned.) So — without even delving into the substance — at the very least Judge Otero is very likely to deny the motion in this form and tell the parties to brief it on a regular schedule. This seems dreary and technical, but law is very technical.
So. What of the substance? The motion is here. Cohen — supported by a satisfyingly arch declaration from Blakely — makes a very strong factual case that Michael Avenatti has been dumping on him, and his actions, and his defenses in this case, absolutely relentlessly in the national media. He documents 121 television appearances and 439 tweets. He quotes Avenatti at length: how Cohen will be indicted, how he will cooperate against President Trump, how his defenses are a distraction, how he has leaked financial documents about Mr. Cohen, and how he has speculated about Mr. Cohen's financial activities. He points out that Judge Kimba Wood, supervising the aftermath of the FBI search of Cohen's home and office, told Avenatti that if he wanted to join the proceedings before her he would have to choose the court road over the media road, and Avenatti chose the media road. It's rather stunning to see it all in one place. It's the most convincing case I've ever seen about how one party's media activities could prejudice the interests of the opposing party.
Cohen also makes a perfectly plausible case that Avenatti's behavior crosses the line from vigorous advocacy into unethical behavior. He quotes Rule 5-210 of the California Rules of Professional Conduct governing lawyers:
A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
But that's a matter for the state bar. This is a matter for Judge Otero, and Michael Cohen is asking the judge to do something extraordinary: issue a prior restraint.
Prior restraint is when a court tells someone in advance not to say something, as opposed to handing out some penalty or punishment after the fact. Though bumptious litigants routinely demand it, it is extraordinarily disfavored under the First Amendment and is almost never permitted, especially on issues of public interest. Michael Cohen is demanding a classic prior restraint: he's asking Judge Otero to forbid Michael Avenatti from speaking to the media on specified topics.
That doesn't mean that Cohen automatically loses. The Supreme Court, noting the constitutional right to a fair trial, has held that courts may under the right circumstances put some temporary limits on the speech of participants in a case, like lawyers and parties. Lawyers in a case, the Court reasoned, have a duty to the courts not to interfere with the fair administration of justice, and therefore their speech can be restrained somewhat more easily than the speech of an outsider. Cohen relies upon that rule and on Levine v. United States, the leading case here in the Ninth Circuit applying it.
Here Cohen falls short. He cites Levine, but he does not confront the extraordinarily heavy burden Levine places on parties seeking a gag order. Since a gag order is a prior restraint, it can only be justified if it passes a test called "strict scrutiny" — which legal scholar Gerald Gunther aptly calls "strict in theory and fatal in fact." It's quite rare for a challenged restriction on speech to survive strict scrutiny. Here's how Levine puts it:
Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints. Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available.
Cohen doesn't quote, discuss, or confront that heavy burden. That's likely fatal to his motion. He doesn't explain how more publicity is going to make things substantially worse. He doesn't discuss the fact that the case is currently stayed pending the criminal investigation of Cohen in New York. He doesn't discuss the relatively narrow scope of the issues before Judge Otero — recall that the next step would be either sending the case to private arbitration under the $130,000 hush-money agreement (if Trump and Cohen win) or a mini-trial on whether that agreement was ever formed (if Clifford wins), so that a full-blown jury trial of the full merits is not something anticipated soon. He doesn't analyze less restrictive methods like jury questionnaires. In short, he does not take his burden seriously.
Brent Blakely is not a bad lawyer, but this is a bad motion. When a not-bad lawyer files a bad motion, one asks why. The easiest explanation is plausible here: Michael Cohen is a terrible client and is demanding this out of anger. But there are other potential explanations. It makes little sense to get Avenatti to stop talking now — that horse has left the barn. The horse isn't even on the same continent as the barn any more, and the barn is on fire. But it might make sense to stop Avenatti from releasing more damaging documents, if Cohen thinks he has them. Moreover, the motion – and its self-defeating emergency format — might make more sense if Something Big Is About To Happen in the criminal investigation of Cohen, such that he's worried about the impact of ongoing publicity on that case, and wants to preempt Avenatti from talking about it.
Were I a gambler, I'd gamble that Judge Otero will issue an order reminding the parties not to file emergency motions and setting a regular schedule or telling Cohen to re-file the motion on a regular schedule. But this is 2018; it's the Age of Possibility. Who knows what dramatic updates this very day may bring?
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/06/15/analysis-michael-cohen-seeks-gag-order-on-stormy-daniels-lawyer-michael-avenatti/
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