LOS ANGELES – In a motion filed Thursday by her attorney Michael Avenatti, Stormy Daniels (AKA Stephanie Clifford) asked the court to reconsider the 90-day stay currently in effect in her challenge to the nondisclosure agreement negotiated by President Donald Trump’s personal attorney Michael Cohen and Daniels’ previous counsel, Keith Davidson.

The crux of the motion to reconsider the stay is Avenatti’s argument that public statements made by Trump and his attorney Rudolph Giuliani since the court granted the stay have undermined the rationale for granting the stay in the first place.

“Plaintiff makes this motion based on the emergence of new facts and circumstances that could not have been discovered before the issuance of the Court’s order,” Avenatti wrote in the motion. “These new facts…. consist of statements made directly by Defendant Donald J. Trump and his attorney Rudolph Giuliani demonstrating that Mr. Trump has personal knowledge of the Settlement Agreement at issue in this action and the $130,000 payment made thereunder.”

Avenatti argues that the new facts revealed in Trump and Giuliani’s statements “call into question whether Mr. Cohen’s Fifth Amendment rights relating to the matters at issue in this case are as compelling as previously argued.”

“Mr. Trump and Mr. Giuliani’s new revelations concerning the Settlement Agreement and $130,000 payment demonstrate that Defendants Trump and (Essential Consultants LLC) are fully equipped to defend Plaintiff’s declaratory judgment claim even without Mr. Cohen,” Avenatti wrote in a memorandum supporting the motion to reconsider the stay.

If Trump and Essential Consultants can defend against Daniel’s declaratory judgment claims on their own, Avenatti reasons, there’s no rush to depose Cohen in the case. Such a deposition could take place after the 90-day stay period without hampering the other parties in the case.

“As a preliminary matter and for clarity, Plaintiff by this motion does not seek to disturb the portion of the Court’s order staying discovery as to Mr. Cohen for 90 days,” Avenatti wrote in the memorandum. “Therefore, although Plaintiff respectfully disagrees that such a stay is necessary or justified for all the reasons previously articulated, she does not propose that Mr. Cohen be required to sit for deposition or produce his own documents during the 90 day period of the stay.”

The statements given by Trump and Giuliani which Avenatti argues have changed the facts surrounding the stay granted last month include comments both men have made to various Fox News shows and a series of tweets sent by Trump following Giuliani’s initial appearance on Sean Hannity’s show on May 2.

“On April 26 (after Defendants filed their joint application for a stay and the declaration of Mr. Cohen supporting the stay), Mr. Trump gave a phone interview with the television program Fox & Friends,” Avenatti wrote in the memorandum. “In the interview, when asked about the criminal investigation in New York of Mr. Cohen, Mr. Trump responded that: ‘they’re looking [in]to something having to do with his [i.e., Mr. Cohen’s] business’ and not the legal work he did for Mr. Trump in this case; that Mr. Cohen did ‘absolutely nothing wrong’; that Mr. Cohen is pleading the Fifth because ‘he’s got other things—he’s got businesses’; and that no campaign funds were used to pay the $130,000. These statements contradicted the position taken by Mr. Cohen days earlier in his declaration (and by Defendants in their stay application).”

Avenatti also argued that statements made by Trump concerning his intent to seek damages against Daniels for violating the NDA, as well as a remark from Cohen about his intent to “take an extended vacation on her (Daniels’) dime” after prevailing in arbitration, weigh in favor of moving ahead with the case to prevent further harm being done to Daniels.

“(I)n addition to Defendants’ threat to sue Plaintiff for $20 million for speaking… and Mr. Cohen’s threat to use the money to ‘take an extended vacation on her dime’…. on May 3, Mr. Trump escalated his

aggressive and threatening attack on Plaintiff and attempts to intimidate her by writing on Twitter to his 51 million followers that he will use the Settlement Agreement “in Arbitration for damages against Ms. Clifford (Daniels).”

“He also disparaged Plaintiff personally by writing ‘[t]he agreement was used to stop the false and extortionist accusations made by her about an affair,’” Avenatti added. “The only way to fully escape the cloud of millions of dollars of alleged damages and liability, would be to allow the lawsuit to proceed and to have the Settlement Agreement declared null and void.”

On Thursday, U.S. District Court Judge S. James Otero signed an order giving the defendants until June 1 to respond to Daniels’ motion to reconsider the stay, after which Daniels will have until Thursday June 7 to file a reply in support of her motion. The order also established a hearing date of June 21, although the order also advised the parties that “due to potential conflicts with the Court’s calendar the hearing may be advanced to an earlier day that same week.”

Courthouse image © Robert Linder