Thread by @Teri_Kanefield

(thread) New developments in the Stormy Daniels case.

I'll update this thread as new info comes in.

First, the background: Oct. 2016, #MichaelCohen, Trump’s lawyer worked with Stormy Daniel's lawyer #KeithDavidson to arranged for Stormy to sign a nondisclosure agreement (NDA).

2/ In Jan 2018, someone leaked the agreement.

Cohen, allegedly using “intimidation and coercive tactics, forced [Stormy] to sign a false statement” denying an affair with Trump. dropbox.com/s/ocvnkwprbs7e…
Presumably Stormy was still represented by Keith Davidson.

3/ Cohen then issued a public statement about the hush agreement, prompting Trump supporters to unleash a torrent of “ridicule and threats” against Stormy—but she defend herself because of the NDA.

(general info about Cohen’s NDA here:

External Tweet loading...
If nothing shows, it may have been deleted
by @Teri_Kanefield view original on Twitter

)

4/ So Stormy hired a new lawyer @MichaelAvenatti and sued to have the original agreement declared invalid due to defects in the NDA: Trump never signed, then later said he never heard of Stormy and knew nothing about the NDA. This sets Cohen up for charges of fraud because...

5/...a lawyer can’t negotiate a K for someone without telling him. Plus the $130 payment violates campaign reform laws (because paid out on behalf of a candidate right before the election), so the NDA has an illegal purpose and is thus not enforceable.

6/The issue for trial is whether the arbitration clause should be enforced. (Stormy’s argument for why it shouldn’t be: The arbitration clause also has an illegal purpose, to hide a crime from the public, so not enforceable.
Notice how clever this is: A trial is public, so it...

7/...blows the NDA to smithereens. Given insinuations of coercion and fraud, at this point Cohen SHOULD have dropped the whole thing by letting Stormy out of the NDA. Instead, Trump joined the case, Cohen refused a settlement offer, and moved the case to federal court.

8/ Because still Trump denied knowing anything, Avenatti suggested Cohen was being set up as the fall guy.

Playing hardball, @MichaelAvenatti amended the complaint, countersuing Cohen for defamation (for calling Stormy a liar). Now Cohen CAN’T drop the whole thing.

9/After the FBI search of Cohen’s stuff, Cohen filed a motion asking to delay the Stormy case because it overlaps with the criminal case. Under the circumstances, he'll want to take the fifth.
Yesterday was the hearing on whether to delay the proceedings.
courthousenews.com/trump-lawyer-m…

10/ Avenatti argues no delay: The criminal stuff may result in Cohen's assets being seized so he won't have any $$ to pay damages!
The judge notes “gaping holes” in Cohen's motion (he didn't say HOW the FBI investigation overlaps, didn't submit a declaration, etc.)

11 /In a criminal trial, the jury is instructed not to draw any inference if a defendant remains quiet. But in a civil case, the jury can draw negative. So moving ahead and have Cohen take the 5th is great for Stormy.

We ALSO learned that Stormy's first lawyer, Davidson, is...

12/...cooperating with prosecutors, indicating that he faces criminal liability. From the CA Bar webpage, we see that he's been disciplined for unethical dealings and once had trouble paying his bar dues (indicating need for money).
Wow, right?
members.calbar.ca.gov/fal/Member/Det…

*Typo in Tweet #3: She COULDN'T defend herself against the attacks because of the NDA (illustrating the extreme unfairness of the NDA. Cohen could say whatever he wanted about her. She couldn't speak under threats that Cohen would sue and take everything, including her house.)

13/ Okay so we left things with the judge telling Cohen to explain how the criminal matter overlaps with the Stormy Daniels matter, & swear out a declaration that he'll be taking the Fifth (which just means he is evoking his right to remain silent and not incriminate himself).

14/ He filed a statement saying the FBI took materials concerning the $130K payment(indicating that there WAS something criminal in this). He also said he would take the Fifth in “in connection with all proceedings in this case…”
Statement here: documentcloud.org/documents/4447…

15/The judge has a few options: Delay both proceedings (the contract dispute and the defamation matter); delay one; or delay neither.

The only detail mentioned was the $130K payment, which overlaps with the dispute over whether the NDA & arbitration clause is valid, but...

16/has nothing to with the defamation issue.

The only thing you really have to know about defamation is that truth is a defense. So, I.e., it goes like this: Cohen called Stormy a liar. Stormy says she was defamed. The issue is: Was what Cohen said true or not?

17/ @MichaelAvenatti has filed his response to Cohen's declaration that he'll stand on the 5th. Among other things, he points out that Cohen misunderstands the Fifth Amendment: In civil cases, he can't invoke the 5th to refuse all testimony, he can only...
dropbox.com/s/7xfrb34lyhle…

18/...refuse on a question by question basis. Even if Cohen won't talk, there are plenty of other witnesses who CAN. Besides, his declaration is lacking specifics. Therefore, Avenatti argues, the hearing shouldn't be delayed.

Whenever we get a ruling, I'll wrap up this thread.

And you'll all be ready for the bar exam. Or certainly the Twitter Honorary Law Degrees (which I'll be handing out at the end of all of this)

Wrapping up this thread. The judge in the Stormy Daniels case issued a stay for 90 days, long enough for Cohen to figure out what's going on with his criminal proceedings. cnn.com/2018/04/27/pol… … …
Here's the lesson: Nobody can ever say FOR SURE what a court will do . . .

.. we can evaluate the arguments and make predictions based on what courts have done, but in pretrial stuff, courts have a lot of discretion.