On April 27th Trump won a significant procedural victory in the case of the lawsuit by Stormy Daniels to have the Hush Agreement declared void. The judge granted a stay in the case effectively putting on hold all the proceedings, to include discovery against the President and his co-defendant personal attorney and “fixer” Michael Cohen.
The basis for the stay was primarily the criminal investigation of Michael Cohen, targeted for search warrants that (among other things), sought information related to the payoffs associated with the Hush Agreement with Stormy Daniels. Cohen filed a notice of intent with the court to plead the 5th in regards to any depositions conducted by the attorney for Stormy Daniels in the civil case related to the Hush Agreement. The judge, recognizing the futility of deposing Cohen, put a hold on it by granting this stay. The judge also weighed other factors, to include whether Stormy Daniels would be prejudiced by delay and determined she would not suffer significant prejudice.
One of the self evident rules for a party benefiting from such a stay is to shut up. Certain facts supported the stay. Don’t say or do anything that will allow the opposing party to argue the facts relied upon the judge to grant the stay have changed and that it should therefore be lifted. While this may seem common sense, it is not Trump sense.
On May 23d Stormy Daniels attorney, Michael Avenatti, filed a motion asking the court to partially reconsider the stay to allow discovery to proceed but only against Trump. Avenatti advanced two significant arguments in this motion to reconsider.
1. This motion seeks only to relieve the stay in regards to discovery against Trump. The stay in regards to discovery and deposition of Cohen would continue. As discussed above the most compelling argument for the stay is that deposition of Cohen was pointless because he would just invoke his 5th Amendment rights. Avenatti argues that is no longer a concern under the current state of his motion.
2. The facts related to the criteria for granting the stay changed because Trump changed them. Trump did it in a series of tweets made after the stay was granted:
One of the criteria, required by law for the judge to apply, was the chance of prejudice to the plaintiff (Daniels) by the stay. Yet, after the judge ordered the stay Trump tweeted to his 51 million followers suggesting the sex allegations were false and suggesting Daniels was an “extortionist.” Trump also tweeted that the Hush Agreement remained “in full force and effect and will be used in Arbitration for damages against” Daniels.
Nothing in all that helped Trump’s legal case, and it strengthened Avenatti’s arguments seeking to compel Trump to deposition. Trump’s position is rather remarkable here. He claims that under the Hush Agreement he is free to deny everything, to call Daniels a liar and extortionist, but if Daniels just says that what Trump says about her is not true then she is liable to the tune of $1 million each time she does so. He is even free to exploit the stay in discovery to engage in that one sided communication to the public portraying Daniels as an extortionist.
Because Trump’s post stay actions exacerbate the prejudice to Daniels Avenatti argues the stay should be lifted, as to Trump, to allow him to be deposed.
In granting the stay the judge found that deposing Trump, without deposing Cohen, would handcuff Trump’s ability to address matters in the deposition. Statements by Trump, and his new attorney de jour Rudy Giuliani, that the investigation of Cohen really has nothing to do with the routine and simple Hush Agreement (and payments), undermined that argument. When asked to comment on Cohen pleading the 5th Trump said:
“this doesn’t have to do with me. Michael is a business man. He’s got a business. He also practices law. I would say, probably the big thing is his business. And they’re looking at something having to do with his business. I have nothing to do with his business. He’s got businesses. And from what I understand, they’re looking at his businesses.”
Avenatti argues that since Trump himself is divorcing the Hush Agreement case from the criminal investigation of Cohen that discovery against Trump should proceed.
The point here is that these wounds against Trump’s own procedural victory in getting the stay were completely unnecessary. All Trump had to do, was shut the Hell up and make their arguments in court. Instead, they fell face first into yet another one of Avenatti’s traps giving him exactly what he need to possibly undo that procedural victory.
If the judge orders Trump to submit to a deposition he will have only his own foot in his mouth to blame. Call it “footlatio.”