Sometimes I think that Mme. Clifford (aka Stormy Daniels, her nom de porn) and her current counsel Michael Avenatti are working for Trump. For all I know Counselor Avenatti could be an amalgam of Justinian, Cardozo and Brandeis. But in my opinion the court cases he has brought do not quite reflect their level of expertise. They are not helpful to Democrats in the Fall congressional election.
There are two cases where Ms. Clifford is the plaintiff, one against Michael Cohen seeking to undo a nondisclosure agreement regarding $130,000 she got from Trump via Cohen and the other asking damages from Trump for defamation. In a third case, Clifford is trying to intervene in the lawsuit Cohen has brought against the government challenging the validity of a search warrant. That intervention attempt is being held in abeyance by the Court with the consent of the government.
Elsewhere in these blogs I commented on the “settlement [actually nondisclosure] agreement” paying Clifford $130,000 for her silence on something that is unexplained in the agreement but that we all know about. I said then and I repeat that paying someone to shut up about a consensual (if not actually sensual) sexual romp does not bother me. I also said that taking the money is a bad fact for Clifford in that case.
Cohen asked to delay the nondisclosure agreement case because he would have to assert his Fifth Amendment right due to possible criminal charges against him. The Court delayed the case for 90 days.
Avenatti, in several of his numerous cable appearances, announced an appeal of that 90-day delay. The Court’s order is not appealable except under special circumstances. He left that out when sharing his tactic with the entire MSNBC (and most of CNN) primetime schedule. What will ultimately happen in that case is unknown. My guess: Avenatti/Clifford are not allowed to pursue a special-circumstances appeal and lose because scheduling is discretionary with the trial court.
In the second case, Clifford wants money from defendant Trump for tweeting that a “sketch years later about (sic) a nonexistent man” is a “total con job…” Avenatti/Clifford say that this is a damnable (and actionable) lie that caused damage to Clifford. The supposedly defamatory Trump tweet doesn’t mention Clifford’s name, but hey, who cares about little details like that.
The man Trump tweeted about is explained in Clifford’s “Sixty Minutes” interview with Anderson Cooper. One of the questions hovering over Clifford is why she accepted $130,000 in exchange for silence. On “Sixty Minutes” Clifford told Cooper that the reason she took the $130,000 in the first place was fear of a man who met her in a Las Vegas parking lot and threatened harm to her baby daughter if she did not remain silent on the Trump tryst. So she took the money because she was afraid, she says. The sketch is her recollection of the man who she says made the threat.
Again, the ultimate result in Clifford vs. Trump is unknown. My guess: Avenatti/Clifford lose. Motion to dismiss granted.
That leaves the Avenatti/Clifford application to intervene in the Cohen search warrant case. That case has become a bit odd with the admission that Trump reimbursed Cohen the $130,000 paid to Clifford. Since a candidate for federal office can give as much of his own money to his campaign as he likes, Cohen did not exceed the $5,400 campaign contribution limit per couple because the money came from Trump. The Federal Election Commission violation that may have arisen through failure to report the Trump contribution (if so construed) would probably result in a fine.
The Cohen search warrant came after the government subpoenaed four of his email accounts and logged his phone calls with a “pen register.” What putative intervenor Clifford has to do with all that eludes me. The breadth of the Cohen investigation suggests the Clifford payment is but a small part of the Cohen picture. Again, no predictions, but as Avenatti/Clifford fade in importance and the government therefore opposes Clifford’s presence in the search warrant litigation, my guess: Avenatti/Clifford lose. Motion to intervene denied.
So why might Avenatti be good for Trump? Because the sex payoff; the supposed defamation of a newly famed and well-paid Stormy Daniels; and the Cohen search warrant case where Clifford wants to be involved– even though her relevance is marginal– are all cases that turn off swing voters and inhibit efforts to get them to vote Democrat.
As I pointed out last week, Democrats need to be substantive to bring voters to their side.
The widely held assumption that Democrats will surely take over the House this year is not one that I share. A lot of work has to be done to achieve that result. Voters who are not already locked up on either side have to be persuaded that Republican policies are wrong and that Democratic congressmen will both undo them and institute better ones.
Dubious litigation emphasizing Trump’s behavioral peculiarities and unattractive personal actions do not help and may, in fact, help Trump and the Republicans.