My Style - Reclaim My Identity

Monday, April 30, 2018

Stephanie Clifford aka Stormy Daniels Files Questionable Defamation Suit Against Donald Trump In New York: Analysis

It's always something.

In my last update on the Donald Trump/Stormy Daniels/Michael Cohen saga, I described the hearing at which Michael Cohen asked United States District Court Judge James Otero to stay — that is, freeze — Stormy Daniels' lawsuit in federal court in Los Angeles, in which she seeks a declaration that her $130,000 hush-money deal with the President of the United States is invalid, and in which she sues Michael Cohen for defamation. Michael Cohen filed the declaration Judge Otero demanded, committing to taking the Fifth in the Los Angeles case. Judge Otero then granted Cohen's motion in a thoughtful and thorough order. So, for those keeping score at home: there's an ongoing federal criminal investigation of the Stormy Daniels hush money deal in New York, and there's Stormy Daniels' lawsuit in Los Angeles, which is temporarily stayed.

That was too calm. Now Stormy Daniels, through her not-exactly-media-shy attorney Michael Avenatti, has sued Donald Trump for defamation in federal court in the Southern District of New York — the same court where United States District Judge Kimba Wood is sorting out the disputes relating to the search of Michael Cohen's office. (As of this writing the case isn't assigned to a judge yet; it's possible that it would get transferred to Judge Wood as related to the matter before her.)

In the lawsuit, Ms. Daniels repeats her now-familiar account of a relationship with Trump. She says that in May 2011, when she was contemplating telling her story to In Touch, a man threatened her in a Las Vegas parking lot, telling her to forget the story. She recently released a sketch of her impression of the man who threatened her. The President of the United States, ever temperate and thoughtful of his lawyers' blood pressure, tweeted about the sketch:

In case you can't see the image, he said "A sketch job years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!

(All quotations of the President of the United States are [sic])

Ms. Daniels claims that President Trump has accused her of fabricating the threat incident, and has therefore defamed her:

Mr. Trump's statement falsely attacks the veracity of Ms. Clifford's account of the threatening incident that took place in 2011. It also operates to accuse Ms. Clifford of committing a crime under New York law, as well as the law of numerous other states, in that it effectively states that Ms. Clifford falsely accused an individual of committing a crime against her when no such crime occurred. Mr. Trump's statement is false and defamatory. In making the statement, Mr. Trump used his national and international audience ofmillions ofpeople to make a false factual statement to denigrate and attack Ms. Clifford.

This is a weak claim, though perhaps (particularly in New York) not weak enough for the President to get it dismissed early.

Let's start with the basics. Only provable statements of fact can be defamatory. Insults, hyperbole, overheated rhetoric, pure opinion, and other things not reasonably interpreted as a statement of fact cannot be defamatory. One of the earliest questions in this case — and likely the one the President's lawyers will attack when they file a motion to dismiss the defamation suit — is whether Donald Trump's tweet can be taken as a provable statement of fact, as opposed to mere bluster, hyperbole, insult, and rhetoric.

This is not at all an idle question; the President has already won a case on this basis. In 2016, political strategist Cheryl Jacobus filed a similar defamation claim against Trump, asserting that Trump defamed her when he claimed in a tweet that she begged for a job and was rebuffed:

Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.

In that case, a New York court dismissed the lawsuit against President Trump, finding that the tweet could not be taken as a statement of provable fact, but was hyperbole and political opinion. There are several important factors in this decision. First, the New York court noted that under New York law, whether a statement is fact or opinion is a question of law for the court — meaning that it can be resolved by the court on a motion to dismiss. Second, the New York court emphasized how important the context of the statement is in determining whether it is fact or opinion. When the statement in question is a Trump tweet, the context is a dumpster fire. Here's what that court said:

Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable. (See eg Jasmine C. Lee & Kevin Quealy, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, The Upshot, NY Times [digital ed], Dec. 6, 2016,http://www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017]). His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration. (Id.; see Technovate LLCv Fanelli, 49 Misc 3d 1201[A], 2015 NY Slip Op 51349[U], *4 [Civ Ct, Richmond County 2015] ["On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence."]; Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J High Tech L 430, 433 [2013] ["The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods."]).

Based on that, the New York court dismissed Jacobus' suit against Trump.

Stormy Daniels' suit against Trump will face a similar challenge. The federal court will be applying the Federal Rules of Civil Procedure for procedural matters, but applying New York's substantive law of defamation. Here's a footnote if you want to know why, because it's dull.¹ Trump's lawyers will almost certainly file a motion to dismiss the case. The question before the federal judge will be whether, if all facts (as opposed to conclusions) in the complaint are taken as true, the complaint shows defamation under New York law. The President's lawyers will have a strong argument, boosted by the Jacobus case, that it does not, because his tweet can't be taken as a factual allegation. The context is (a) this President and (b) Twitter. Twitter in general, and this President on Twitter in particular, are widely understood by anyone familiar with the context to be full of bombast and truculent rhetoric, not reliable fact. This impression is enhanced by the figurative language ("con job") in the tweet and the way it was combined with an overtly partisan and opinion-based swipe at the news media. In short, the President's lawyers have a very credible chance of getting this thrown out on the basis that Trump's tweet can only be taken as trash talk, not as a literal provable statement that Daniels is lying.

Yes, that would make two courts that have found as a matter of law that the statements of the President of the United States cannot be taken factually or literally, but should be understood as bluster.

That's not the only problem with the case, but it's the biggest one and the one most likely to help the President at the motion to dismiss stage. I also note that there are issues with the allegations about President Trump's knowledge. Because Stormy Daniels is a public figure, to prove defamation she has to show that a false statement about her was made with "actual malice" — which in defamation context means with knowledge that it was false or reckless disregard about its falsity. She hedges her bets on that:

Given the circumstances surrounding the threatening incident in 20II, namely that Ms. Clifford had not at the time gone public with her story and very few people kmew of the possible In Touch story, it is reasonable to infer that the person who threatened Ms. Clifford could have only been acting directly or indirectly on behalf of Mr. Trump and/or Mr. Cohen. Thus, Mr. Trump may have actual knowledge of the incident and ofthe falsity of his statement.

Alternately, if Mr. Trump in fact had no direct or indirect connection to the incident, then Mr. Trump necessarily acted in reckless disregard of the truth or falsity of his statement because he would have no way of knowing one way or the other as to whether the incident occurred. Nevertheless, and in spite of this, he chose to defame and disparage Ms. Clifford to his audience of over 50 million Twitter followers and many more worldwide.

If President Trump knew the statement was false, that's actual malice. But the second paragraph doesn't describe actual malice. Actual malice requires reckless disregard of the truth, which means more than just extreme carelessness. Most courts — including New York courts — say that it requires that the defendant had serious doubts about the truth of the statement but made it anyway. It would be difficult, to put it mildly, to prove that President Trump entertains serious doubts about the things he says or tweets, or is capable of such doubt. Stormy Daniels' allegation of reckless disregard is insufficient as a matter of law.

New York doesn't have an anti-SLAPP statute — a statute providing a procedural vehicle to get rid of a bogus defamation case and recover attorneys fees, which is more powerful and flexible than a motion to dismiss. But here's the trick, and I don't know if Stormy Daniels' lawyers know it. Stormy Daniels is from Texas. Texas has a strong anti-SLAPP statute. And some federal courts will apply the anti-SLAPP statute of your state of origin if you file a defamation claim in federal court elsewhere. My friend and First Amendment badass colleague Marc Randazza pointed this out to me — in fact, Marc says, federal courts in the Second Circuit (which includes the court where Daniels filed this case) have applied anti-SLAPP laws from the home states of plaintiffs to cases there. That would give President Trump's lawyers a powerful tool, even more powerful than a motion to dismiss, to get rid of the case — and even to recover attorney fees.

This is not a strong defamation case; it's a very weak one, substantively and procedurally. Michael Avenatti isn't dumb, and it's possible his real strategy is less the ultimate success of the case but the additional vector of pressure it puts on Team Trump — it's one more place to drag Trump into court, one more place where she could conceivably seek discovery from Trump and Michael Cohen (who would presumably have to take the Fifth), one more move on the board.

As a federal criminal law and First Amendment practitioner, this is an amazing time to be alive.

Wednesday, April 25, 2018

"A First Amendment Issue" vs. "Absolutely Protected By The First Amendment" — A Common Free Speech Misunderstanding

In the last few years I've noticed a fundamental misunderstanding in how we talk about First Amendment law, particularly when wonks like me talk to normal people. The misunderstanding involves what it means for something to be a "First Amendment issue" or "governed by the First Amendment" or even "protected by the First Amendment."

Take, as the latest example, deeply silly and annoying Fresno State loudmouth Randa Jarrar. It's unequivocally clear: whether or not Fresno State can fire her is governed by the First Amendment. Put another way, it's a First Amendment issue, or her speech is protected by the First Amendment. You may not like it or agree, but that's the law.

But perhaps when I say those things, I'm not being clear about what I mean. People seem to take it as if I am saying "Randa Jarrar's speech is absolutely protected by the First Amendment and she can't be disciplined, case closed." But I'm not. I'm saying that the First Amendment is the source of the legal standard that governs whether she can be fired — that the Supreme Court has articulated a specific multi-step analysis to determine whether a state employer can fire a state employee for speech. If I mean to say "I've done the requisite First Amendment analysis and it's clear that under that process the end result is that her speech is absolutely protected," then I should say so clearly. Maybe I don't always.

Defamation cases are another good example. Nearly every time I say that the First Amendment applies to evaluating a defamation claim, people say "but defamation isn't protected by the First Amendment." This again confuses process and results. What I'm saying — and maybe I should say more clearly — is that established First Amendment caselaw shows us how to tell whether or not a statement is potentially defamatory (not protected by the First Amendment) or absolutely protected like pure opinion.

First Amendment wonks like me could make public dialogue more productive by being clear about this distinction, I suppose. The best analogy I can give is this. When I say "whether this person can be punished by this speech is a First Amendment issue/governed by the First Amendment," it's like I'm saying "whether this defendant is guilty is a question for the jury." I'm not saying the person will necessarily be found not guilty. I'm saying there's an established constitutional process. This isn't Nam, there are rules.

So: I'll try to be clearer when I'm saying "the end result is that the First Amendment protects this speech so it can't be punished" versus "the First Amendment provides the rules to determine whether this speech can be punished."

As you were.

Tuesday, April 24, 2018

About The Bogus Defamation Claim Against Lee Stranahan

Earlier today, in my angry mood at Tewksbury, I had Twitter words with one Lee Stranahan, self-styled journalist currently seen on Sputnik and InfoWars. That spat was tawdry and need not detain you. But it reminded me I hadn't mentioned a problematical defamation case about him.

Brennan Gilmore sued a whole pack of lunatic-fringe mock-journalists, including Stranahan, after the neo-Nazi murder of Heather Heyer at the "Unite the Right" rally in Charlottesville, Virginia. Gilmore observed and commented on the murder and posted a video on social media. Various lunatics, noting that Gilmore is a Foreign Service Officer, began pushing a narrative that he is a deep-state Soros-funded operative there to support a coup against Trump, with related word-salad. That's the world we live in.

Gilmore sued a bunch of them for defamation and intentional infliction of emotional distress, claiming entirely credibly that he'd been swamped with death threats as a result of their conspirabation. This post concerns only one small bit of that claim — the bit against Lee Stranahan. See, Stranahan was interviewed for an InfoWars video entitled "Bombshell Connection Between Charlottesville, Soros, CIA." The video features Stranahan Stranahanning:

STRANAHAN: If you go to Brennan Gilmore’s page, his Twitter page,
you’ll see he has a picture of the young woman who was murdered, and you
know what is says? “Martyr.” . . . Literally it says “martyr.” You can’t be
more explicit than this. So here’s what I’m saying. I’m not a conspiracy
theorist, I’m a fact-based journalist. The facts are enough. However, the
Democrats have investigated Trump for a lot less. For a lot less. They have
called for investigations, and secret meetings, they have convened the FBI.
When you have this many things going on, I think someone really needs to
investigate. . .

[MCADOO scrolls through Gilmore’s Twitter page]

STRANAHAN: Yeah, if you scroll…keep scrolling…this is the guy,
Brennan Gilmore, and if you scroll down, keep going, it’s not too far, you’ll
see the photo of the young woman…this is abs [sic]…when I saw this, uh,
I was shocked…by the way, his bio, if you look at this guy’s bio, it says
he’s with the State Department, and the fact that he called her a ‘martyr’. .
. I [STRANAHAN looks knowingly at the camera, eyebrows raised, arm
raised, MCADOO nods comprehendingly, laughs] don’t know, but this is
clearly, the way she’s being used is she’s a martyr to the cause. . . .

STRANAHAN: And let me point out what’s happening. They, uh, they win
no matter what they do. Are they trying to get a coup? I think clearly they
are. But if they can’t get a coup, they’ll settle for impeachment. And if they
can’t get impeachment, they’ll settle for smearing Trump and his supporters
so much that they’ll be able to elect another elitists. Does that make sense?

MCADOO: Absolutely.

This is the premise of Gilmore's defamation and intentional infliction of emotional distress claims against Stranahan. And it's bogus. Stranahan's speech is clearly protected by the First Amendment.

Only false statements of provable fact are potentially defamatory. The First Amendment absolutely protects opinion when that opinion is based on disclosed facts, however ludicrous and evil the opinion is. Here, Stranahan discloses his facts, which are undisputed: Gilmore had a picture of the Heyer and referred to her as a martyr, and Gilmore works for the State Department. From these undisputed facts Stranahan spins his opinion: these facts show a conspiracy against Trump, the conspiracy is trying to get a coup or impeachment or smear Trump supporters, and so on. It's an opinion only an evil or diseased mind would offer. But it's a protected opinion — just like my saying look at this specific thing Stranahan did, he's crazy or evil. If Stranahan had said "based on documents I've reviewed I think Gilmore is a Soros-paid deep state operative and organized the killing as a false flag," that would be potentially defamatory, because it's based on undisclosed facts — the "documents." Here, an opinion based on clearly disclosed facts — no matter how vile, moronic, or disturbed — is absolutely protected by the First Amendment. Similarly, because it's a discussion on a political matter of public interest, it's also almost certainly protected from the intentional infliction claim under Snyder v. Phelps.

Stranahan's lawyer Aaron Walker — whom you may recall had to fight for his own First Amendment rights against domestic terrorist Brett Kimberlin — has ably made this point in his motion to dismiss, along with other points beyond the scope of this post.

I think Lee Stranahan — who currently works for Sputnik, funded by a hostile foreign power seeking to undermine our nation and its values — is morally responsible for the threatening response his bizarre and contemptible speculation predictably generated from his scary audience. But he's not legally responsible. His speech is protected by the First Amendment, and should be. His consequence is to remain Lee Stranahan, admired by the sort of people who admire Lee Stranahan and scorned by everyone else.

I note that today Stranahan posted a video of himself ranting about me as he walked down the street. One of his points was that free speech is only valuable if it is premised on rational discourse. The quote above, willingly offered to InfoWars, is what he considers rational discourse. I refute it thus.

Monday, April 23, 2018

Dear DNC: We Need To Talk About RICO

Dear Democratic National Committee:

I'm sure you are all very excited about the big boisterous federal complaint you've filed against Russia, the GRU, Wikileaks, the Trump campaign, Rasputin, Richard Nixon, Jared Kushner, Al Gore for inventing the internet, and so on.

Can we talk?

I'm not going to hector you on all the legal and theoretical problems with your complaint. Other people who are smarter than I am are already doing that.

I just want to talk about one aspect . . . .

. . . . it's our little friend RICO.

DNC. DNC, my friend. It's almost never RICO, and throwing down RICO to signify THIS IS BIG is a move that puts legal strategy behind public relations.

RICO is a complex statute designed to address criminal organizations — by which I mean not organizations that do criminal things in pursuit of their goals, but organizations whose purpose is criminal. Stretched past that, it gets needlessly complex.

I understand. "RICO" is the new "awesome." It conveys, to people who don't understand it, "the things these people did are really bad and really criminal." It's a big frowny emoji. But the vast majority of the time it's far more trouble than it's worth in court.

First, federal judges hate RICO. They hate it because it's unseriously overused by litigants without enough confidence to let their core substantive claims speak for themselves. There are three groups that use RICO indiscriminately: pro se litigants complaining that the Bureau of Indian Affairs implanted SatNav in their junk, plaintiffs' attorneys of the sort who go to court in a sports coat they keep in their glove compartment, and professional vexatious litigants. That's why many federal judges often have standard orders they issue in civil RICO cases that say, in effect, "you think you have a valid RICO claim? Fine, answer these 20 complicated questions to help me sort it out." Judges don't do that for other claims. So: when you come into court with a RICO claim, you start (at best) with the judge suspicious of your professionalism and credibility.

Second, it's very difficult to allege RICO properly, and unusually easy to get a RICO claim dismissed for failure to allege it properly. The requirements are arcane. It's common for federal courts to dismiss them or, at least, for the plaintiff to have to make multiple attempts to plead them right. To quote Judge John G. Koeltl (who has drawn the DNC's case) in a 2016 opinion:

Courts have repeatedly warned against attempts by plaintiffs “ ‘to mold their claims to the RICO form even though their injuries do not fall within those intended to be addressed by the Act.’ ” Lefkowitz v. Reissman, No. 12cv8703 (RA), 2014 WL 925410, at *4 (S.D.N.Y. Mar. 7, 2014) (quoting Rosenson v. Mordowitz, No. 11cv6145 (JPO), 2012 WL 3631308, at *5 (S.D.N.Y. Aug. 23, 2012)). The alleged predicate acts of mail and wire fraud “ ‘merit particular scrutiny,’ ” id. (quoting Cohen v. Cohen, 993 F.Supp.2d 414, 423 (S.D.N.Y.2014)), lest the courts allow the RICO statute “to federalize garden-variety state common law claims,” id. (quoting Gross v. Waywell, 628 F.Supp.2d 475, 483 (S.D.N.Y.2009)).

Put another way, alleging RICO usually gives the defense a weapon — it allows them to file a credible motion to dismiss the RICO claim, which at a minimum will drag out the litigation. It often ensures you'll spend the better part of a year squabbling about how the complaint was drafted rather than getting to the heart of the matter.

Third, practically speaking, RICO is more bark than bite. Oh, sure — RICO has provisions for triple damages and forfeiture of assets and all that jazz. But that's all stuff that could hypothetically happen at the end of a case, years down the road. What does it get you now? Usually, very little more than bragging rights to say "I DID A RICO." The vast majority of federal cases are resolved short of trial through some method other than a judgment reflecting the full weight of what could have been won. Very occasionally (not in this case) RICO will provide your vehicle to get into federal court, in which case it might be worth it. But more often than not, it's mere signalling that doesn't have much impact on the outcome.

If there's a legal lesson from the Trump era, it's the one I suggested last Friday after the hearing in the Stormy Daniels v. Michael Cohen case — public relations strategy often conflicts with legal strategy. DNC, your lawsuit appears to reflect you going all-in on public relations strategy at the expense of effective legal strategy. I offer no opinion on how well this will work out in the court of public opinion (other than to restate my faith in your capacity to snatch defeat from the jaws of victory). But legally, your complaint appears drafted in a way that will be unnecessarily easy to attack in court — which, of course, detracts from the public narrative.

RICO is a mother-of-all-bombs type of thing: showy, but not necessarily effective. Go with precision drone strikes instead.

Guest Post: Paul Alan Levy On The Karen McDougal v. National Enquirer Settlement

Paul Alan Levy, an attorney at Public Citizen, bloger, and general free speech badass is familiar to Popehat's readers for his legal exploits. We're happy to have a guest post from him today.

The generally accepted narrative about the sudden settlement of Karen McDougal’s lawsuit against the National Enquirer (through its parent company, American Media, Inc.) for its “catch and kill” treatment of her account of her affair with Donald Trump is that the FBI’s April 9 execution of a search warrant at Michael Cohen’s office was what made the difference, coupled with the possibility that had the case continued, McDougal’s very able counsel, my friend Peter Stris would be able to start taking discovery that might prove very embarrassing to all concerned.

I believe that narrative to be mistaken. Certainly the prospect for discovery might have been a concern for some in the long run, but the narrative misses two points.

First, on April 2, a week before the search warrant execution, AMI moved to dismiss the complaint under the California anti-SLAPP statute; two weeks before that, the company had issued a statement about the lawsuit attacking Stris’s statements abut the situation. In both documents, the company said that it had already released McDougal from many of the restrictions on her communicating with the media about her experiences (the account that had been subjected to the catch and kill), allowing her to respond to legitimate press inquiries by talking about her situation. The company claimed that the only limit was on McDougal selling her story to another media outlet. The motion to dismiss went a bit further: it said that, in fact, the company had no desire to prevent McDougal from telling her story going forward (it pointed out, for example, that McDougal had given an extensive interview to Anderson Cooper). It argued that the lawsuit was really over the company’s having made editorial decisions not to carry in other of its publications various material about McDougal or written by McDougal, and it argued that suing it for the exercise of its editorial discretion implicated the company’s free speech in a way that warranted coverage under the anti-SLAPP statute.

My immediate reaction to this filing was that AMI was signaling its desire to drop the restrictions on McDougal’s speaking publicly, and that assuming that AMI’s position was sincere, the case was likely headed for a prompt settlement. And that is what has happened.

Moreover, at that point, McDougal faced a serious incentive to settle rather than litigate. I don’t say that AMI’s argument about SLAPP coverage was sound, but it was not a ludicrous argument (some of it depended on claimed facts of whose veracity I have no knowledge). But if the anti-SLAPP motion was granted, McDougal faced a serious award of attorney fees.

The second major point is that, in California, an anti-SLAPP motion generally puts a hold on discovery, and if the anti-SLAPP motion is denied, the denial can be appealed. So it was fairly unlikely that McDougal was going to be able to take discovery anytime in the next year or so, thus embarrassing the criminal law defense for Cohen or others, another prospect said to have produced the settlement.

Moreover, down the road, the very same discovery might go forward in the event either Keith Davidson or Cohen gets sued, as Stris has publicly threatened to do. And the settlement does not release McDouga’s possible claims against them. So the notion that AMI was buying itself protection against embarrassing discovery seems weakened for that reason as well.

Rather, it is my assumption that AMI responded to the terrible publicity that it was receiving for the alleged “catch and kill” situation by giving up its right to kill the story. But that surrender was already effective on the day the search warrant was executed.

None of this takes away from the excellent lawyering by Peter Stris to achieve this result for his client. But I think he deserves full credit for what he achieved, and need not share any credit with the authors of that FBI warrant.

Friday, April 20, 2018

Michael Cohen's Motion to Stay The Stormy Daniels Case Deferred, Cohen's Situation Pronounced Ominous

Today, in a mood for some history, I walked half a mile to the new federal courthouse to watch United States District Court Judge James Otero hear argument on Michael Cohen's motion to stay — that is, freeze — Stephanie Clifford's aka Stormy Daniels' lawsuit. That suit seeks a ruling that her bizarre $130,000 hush-money agreement not to tell tales about the President of the United States is void and not enforceable because, among other reasons, President Trump never signed it. I've previously described what the case is about and the nature and significance of Cohen's request for a stay. Although Judge Otero took the matter under submission — promising to rule in writing — the hearing did not disappoint.

I gathered with a scrum of press and interested citizens and surrendered my electronics at the door — an unusual move calculated to prevent livetweeting and other shennanigans. For the benefit of my readers who are federal clerks and judges that was totally unnecessary because I always obey all of your rules, naturally. Ms. Clifford was represented by the now-familiar Michael Avenatti and his associate. Michael Cohen was represented by Brent Blakely, whom I had not seen before. President Trump was represented, as narrative convention requires, by three white men with good hair whose names escape me, and who did not talk after introducing themselves to the court.

There were two themes to the hearing. One is 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. "It's substantially likely some kind of criminal action will be filed," based on the nature of the search, Judge Otero said at one point. Later, based on his experience overseeing warrants, he opined "something big is going to follow."

The second theme of the hearing was that the parties' legal interests were at war with their political and public relations interests.

Cohen is in a bind: it's clear from the search of his office that the FBI is investigating the hush-money contract he brokered between President Trump and Stormy Daniels, and it would be imbecilic to anything but assert his Fifth Amendment privilege against self-incrimination in answer to all questions about that subject. But defending Stormy Daniels' case in Los Angeles would require him to answer questions to defend the validity and enforceability of the contract. If he takes the Fifth he almost certainly loses the civil suit and the contract is voided. There's a remedy for that dilemma — Judge Otero has the discretion to stay the civil case while the criminal case proceeds. Judge Otero is supposed to consider factors including the prejudice to Daniels if the case stops, the prejudice to Cohen if it moves forward, and the interests of the public.

But both Cohen's and Daniels' public interests conflict with their legal interests here. Most importantly, Cohen did not file a declaration stating that he was going to take the Fifth because he felt the questions in the Daniels case could incriminate him. He relied on his attorney's statements that he would. There was only one reason not to do that — because doing so would be an act that could be used against him in the court of public opinion, and if he didn't do it, he and his lawyers could continue to take the public stance that he hadn't decided yet — with the subtext that he probably didn't need to because he didn't do anything wrong. Judge Otero didn't like it, and repeatedly pointed out that though the record (for instance, the proceedings in New York) suggested that the criminal investigation and the Daniels case were on the same topic, there was nothing from Cohen confirming that he believed the proceedings would incriminate him — or explaining why his lawyers filed a declaration from him in the Daniels case even after the New York search (a genuine blunder). Avenatti pointed out that Cohen's failure to file a supporting declaration was purely tactical — he didn't even offer one in his reply after Avenatti called him out for it in the opposition. Ultimately Judge Otero didn't order him 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.

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. 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? Blakely snarked that Avenatti has talked about the case on TV 53 times — "54, if you count Bill Maher." Avenatti struggled to explain how Ms. Daniels was still laboring under Cohen's feckless bluster that he would win $1 million from each statement she made and go on vacation with the proceeds. But the judge was clearly skeptical that the threat of the hush money agreement was actually prejudicing her any more. Avenatti, too, had to eat his words. It was in his interests to argue that a stay was fruitless because the federal investigation could take years; Blakely twisted the knife quoting Avenatti's pronouncements that Cohen would be indicted within 90 days. Avenatti was forced to concede, in decorous terms, that his pronouncement was shit-talking.

In short, everyone's public bluster and press maneuvering detracted from their litigation interests. It is often thus.

Judge Otero's questions implied some meaningful points. First, there was a significant discussion of whether Cohen would be forced to take the Fifth in response to answers at a deposition, and whether the stay should be deferred until he is called upon to do so. That implies that Judge Otero is seriously considering Daniels' request for limited discovery to determine whether any contract was formed, and therefore whether Cohen and Trump can compel Daniels to arbitrate. Normally an arbitrator decides whether an arbitration agreement is enforceable — but a judge can allow limited discovery and a quick mini-trial on the question of whether the contract containing the arbitration agreement was ever formed in the first place. Daniels' theory is that it wasn't, and that a deposition of Cohen and Trump will prove it. If Daniels can compel discovery of Cohen — and maybe even the President — it will be momentous. Second, Judge Otero also suggested that he might carve out Daniels' claim for defamation against Cohen, which is premised on Cohen's comments about Daniels in the media. Cohen was filed a well-crafted anti-SLAPP motion to strike that claim and is not arguing that claim needs to be arbitrated. Because it's an issue of law, Judge Otero may reach it even if he does stay the case. Third, Judge Otero noted that if he rejects a stay, the ruling could be immediately appealable, pointing to more potential delay. (Any ruling on the anti-SLAPP motion is also immediately appealable.)

There was intensity, but there were moments of levity. Judge Otero dryly noted he might handle discovery disputes (which might include such lofty issues as executive privilege) himself rather than send them to a magistrate judge. There were audible snorts in the courtroom when Blakely characterized the matter as "just a contract case." And Avenatti and Blakely gleefully twisted knives at each other. Avenatti explained he wanted to proceed immediately because criminal proceedings could leave Cohen a pauper unable to pay a judgment; Blakely repeatedly threw shade at Avenatti's fondness for the camera.

Judge Otero asked tough questions of both sides, often asking questions which — in isolation — sounded like he was deciding one way or the other, only to point in a different direction a moment later. He was well prepared and skeptical of both sides, a model of what you want an independent judiciary to be. Both Blakely and Avenatti was well-prepared and effective advocates. Trump's lawyers looked concerned very competently.

The end result was this: Cohen has until next Wednesday to file a declaration supporting his request and establishing that he intends to take the Fifth. Avenatti can file a rebuttal within 24 hours. Then the judge will rule in writing. Based on my observation, I think that there's a strong chance that Cohen will lose the motion outright if he doesn't file the declaration. If he does, I suspect Judge Otero will grant a limited stay — not so much to preserve Cohen's interests in the civil case, but to give his lawyers a reasonable amount of time to get a grip on what is going on and make longer-term decisions about how to deal with the civil case. Judge Otero repeatedly noted that the criminal case could take a long time, but that it was reasonable for the lawyers to want to regroup to evaluate the situation and how to weigh Cohen's interests in the two matters. I also suspect Judge Otero will hear the anti-SLAPP motion against Daniels' defamation claim — it's a strong motion and a weak claim.