LOS ANGELES – In a ruling issued Friday afternoon, U.S. District Court Judge S. James Otero granted a 90-day stay (pause) requested by President Donald Trump’s personal attorney Michael Cohen in the lawsuit filed by adult performer Stormy Daniels (AKA Stephanie Clifford) challenging the validity of a nondisclosure agreement negotiated with Cohen in 2016.
In granting the stay, Otero found that while “the exact scope and breadth of the criminal investigation remains unclear, both the government and Mr. Cohen have indicated that the subject matter of the criminal investigation, and the documents seized, in some part reference the $130,000 payment made to Ms. Clifford pursuant to the Agreement.”
“Any criminal investigation into this payment would likely have significant overlap with Plaintiff’s assertions that the Agreement, and the payment in particular, had an illegal purpose,” Otero wrote in his order. “Indeed, the government has even acknowledged that the particular issue of Mr. Trump’s consent to the Agreement could have a significant impact on the criminal proceedings. Furthermore, Ms. Clifford has specifically requested testimonial discovery from Mr. Cohen on his role and conduct in relation to the payment, (Essential Consultants), and the Agreement. Given these circumstances, the Court finds that there is a large potential factual overlap between the civil and criminal proceedings that would heavily implicate Mr. Cohen’s Fifth Amendment rights.” (Bold emphasis present in the original document.)
In the order, Otero indicated that prior to Cohen filing his supplemental declaration, the court was inclined to agree with Avenatti that Cohen had not met his burden to establish that a stay was warranted, but Cohen’s declaration changed the analysis.
“The Court agreed with Plaintiff that, on the basis of the record before it, Mr. Cohen had failed to demonstrate a reasonably high likelihood that substantial prejudice to his rights would result if a stay were not granted,” Otero wrote.
In his declaration filed last week, Cohen stated that he would assert his Fifth Amendment privilege “in connection with all proceedings in this case due to the ongoing criminal investigation by the FBI and U.S. Attorney for the Southern District of New York.”
In a footnote concerning the current lack of an indictment against Cohen in connection with the FBI raid of his residence, office and hotel room, Otero noted that while Avenatti is correct that “a case for stay is weaker where no indictment has been returned, the significance of the FBI raid cannot be understated.”
“This is no simple criminal investigation,” Otero wrote, “it is an investigation into the personal attorney of a sitting President regarding documents that might be subject to the attorney client privilege. Whether or not an indictment is forthcoming, and the Court thinks it likely based on these facts alone, these unique circumstances counsel in favor of stay.”
While Avenatti argued in his opposition to the requested stay that Cohen’s declaration amounted to an improper “blanket refusal to answer any question,” Otero found the declaration to be sufficient for the current stage of the proceedings.
“Mr. Cohen is not required at this stage in the proceedings, however, to properly assert his Fifth Amendment rights,” Otero wrote in another footnote in the order. “(H)e need only demonstrate that there is a reasonably high likelihood that substantial prejudice to his rights would result if a stay were not granted. Given that one of Plaintiff’s key questions is the legality of the $130,000 payment to Ms. Cohen, which Mr. Cohen asserts is part of the FBI’s criminal investigation, the Court finds that Mr. Cohen has adequately met his burden.”
In a tweet published Friday, Avenatti said while he respected Otero’s decision, he would likely file an immediate appeal of the order to the Ninth Circuit court of appeals this week.
While we certainly respect Judge Otero’s 90 day stay order based on Mr. Cohen’s pleading of the 5th, we do not agree with it. We will likely be filing an immediate appeal to the Ninth Circuit early next week. Justice delayed is justice denied. #basta
— Michael Avenatti (@MichaelAvenatti) April 27, 2018
Assuming Otero’s order is not overturned in the interim, a status conference regarding the status of the stay will be held on July 27. A joint report on the status of the criminal proceedings in New York is due from the parties 10 days before the status conference.
