Michael Cohen Seeks Gag Order on Lawyer for Stormy Daniels
Posted June 15, 2018 6:10 p.m. EDT
Calling for an end to the “media circus” that has engulfed his numerous legal cases, Michael D. Cohen, President Donald Trump’s longtime personal fixer, has asked a judge in California to keep his adversary, lawyer Michael Avenatti, from speaking about him in the news media.
In a motion filed Thursday night in U.S. District Court in Los Angeles, Cohen requested that a restraining order be placed on Avenatti, a lawyer for pornographic actress Stephanie Clifford, barring him from publicly discussing almost anything about a breach-of-contract lawsuit he had filed against Cohen.
For nearly four months, Avenatti has been waging both a multifront legal effort and a guerrilla-style publicity campaign against Cohen, saying he had “zero credibility” and repeatedly predicting his indictment. The request for the gag order, which legal experts said Cohen was unlikely to win, came in a suit in which Avenatti has accused Cohen and Trump of breaking a $130,000 nondisclosure deal to keep Clifford, who is better known as Stormy Daniels, quiet about an affair she claims she had with Trump.
“Mr. Avenatti’s actions are mainly driven by his seemingly unquenchable thirst for publicity,” Cohen’s lawyer in California, Brent Blakely, wrote in the motion to Judge S. James Otero. “Mr. Avenatti’s publicity tour, wherein he routinely denigrates Mr. Cohen with claims of alleged criminal conduct, is contrary to the California Rules of Professional Conduct, likely to result in Mr. Cohen being deprived of his right to a fair trial, and threatens to turn what should be a solemn federal court proceeding into a media circus.”
Cohen’s mounting courthouse woes — two lawsuits and a separate criminal investigation — have, of course, already devolved into a media circus, as even his own lawyers in New York have noted. Aside from the breach-of-contract suit, Avenatti has sued Cohen in another California case, claiming he conspired with Clifford’s former lawyer, Keith Davidson, to quash the story of her alleged affair with Trump. And Cohen is under investigation by federal prosecutors in New York, who are looking into whether he broke the law in any of various business dealings, including the hush-money payment to Clifford.
Cohen’s request for a judicial order to silence Avenatti was extraordinary, not the least because he himself has long had a reputation for employing hardball tactics, especially when it comes to the media. The gag-order motion followed a series of TV appearances that Avenatti made Wednesday night predicting that Cohen would turn on Trump and cooperate with the New York prosecutors who are leading the criminal inquiry.
Those appearances were themselves prompted by news reports earlier Wednesday that Cohen was planning to split with his criminal defense team in part because of a dispute about his legal bills, some of which the Trump family has been paying. The disagreement over money — how much of the bills should be paid and for how long — could serve to further isolate Cohen from Trump, a risky move for the president that could intensify the pressure on Cohen to cooperate.
Avenatti responded to the gag-order request on Twitter on Thursday night, calling Cohen’s motion “a complete joke and baseless.” On Friday, Otero refused to issue an immediate emergency ruling on Cohen’s request, asking for additional papers to be filed in the next two weeks by both sides.
In a federal court hearing last month in Manhattan stemming from the criminal investigation, a lawyer for Cohen complained about statements by Avenatti, who had sought to appear formally in New York in order to protect any records related to Clifford that the authorities may have seized when they raided Cohen’s office, apartment and hotel room in April.
In the hearing May 30, the New York judge, Kimba M. Wood, told Avenatti that while she could not stop him from speaking in public, he would have to tone down his “publicity tour” if he wanted to take part in the case.
Avenatti immediately withdrew his application to appear and continued his attacks on Cohen, calling him a “moron” in an interview this week with Stephen Colbert.
For the past two months, the criminal case in Manhattan has been bogged down in a review of the nearly 4 million files seized from Cohen, as his lawyers and lawyers for Trump work with a court-appointed special master to determine which among them are protected by the attorney-client privilege. On Friday, prosecutors told Wood that Trump and Cohen’s legal teams would finish their review by June 25. That included some new materials they had only just received — among them about 700 pages of Cohen’s encrypted messages, and 16 pages that were pieced together from strips of paper found in one of his shredders. Two legal experts said the odds were heavily against Cohen’s prevailing in his request to silence Avenatti.
“I think what Cohen’s lawyer is trying to do is to get a second shot at the gag order which Judge Wood was unwilling to grant in the criminal case,” Rebecca Roiphe, a professor of legal ethics and criminal law at New York Law School, said.
While Avenatti’s publicity tour may be good for him, she added, “it’s also good for his client.” She noted that part of what Clifford is seeking is vindication of her reputation.
Stephen Gillers, who teaches legal ethics at New York University School of Law, said, “Cohen’s problem is that he has cited no case in which a court has imposed any kind of gag order on a lawyer in a civil matter.”
Gillers speculated that Cohen might be hoping that even if Otero denies the motion, he will caution Avenatti with strong language that could encourage California lawyer disciplinary authorities to examine Avenatti’s conduct.
“So Cohen will lose, but Avenatti might be chastised, and that might be an acceptable second place prize for Cohen,” Gillers said.