“This case gets better every day, every hour.”
Well, that’s one accurate statement Stormy Daniels‘ lawyer Michael Avenatti made Thursday morning in a CNN interview. Less accurate were his repeated claims that he’s been perfect throughout his case against President Donald Trump and his lawyer Michael Cohen.
“I haven’t been wrong about anything in this case, thus far,” Avenatti said. “You would agree, I’ve been perfect.”
Over and over again, he repeated, “I’ve been perfect.”
Sure, Avenatti has had some good moments during this case so far, but they’ve mostly been limited to television studios. When it comes to courtrooms and legal documents, however, his track record is far from perfect. Here are some highlights:
1. Adultery is not a crime in California
There’s the time he argued that the hush agreement was void “based on illegality” because it was meant to cover up adultery, which Avenatti pointed out is a crime in Trump’s home state of New York. Of course, New York has nothing to do with the Daniels agreement, because she claims she had sex with Trump in California. Did Avenatti seriously not think a judge would notice that?
2. He added a defamation claim based on a true statement.
There are several elements needed to prove a defamation case, but the most important thing by far is that the statement in question has to be false. Someone can say a horribly damaging and embarrassing thing about another person, but if it’s true, it’s not defamation. Avenatti may have forgotten this when he added a defamation claim to Stormy Daniels’ lawsuit.
See, the claim is over a statement Cohen made regarding why he would want to keep Stormy Daniels from talking about an alleged affair if Trump denies that the affair ever took place. Cohen said, “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.”
Avenatti argues that this statement was a false and defamatory reference to Daniels. Of course, given the wording, it’s hard to argue that Cohen’s words were false. He didn’t say that Daniels was lying, he just acknowledged that things are not true can still be harmful. That is a true statement. Heck, it’s the whole reason why we have defamation laws in the first place. The part where he says, “I will always protect Mr. Trump,” is in know way harmful to Daniels and it’s also hard to argue that it’s false, considering Cohen’s loyalty to his client.
3. He didn’t follow all of the rules, apparently annoying the judge in the process.
Avenatti actually got called out by a judge for this one. When he requested to depose Trump and Cohen under oath and to have an expedited trial, he argued against Cohen’s attempt to invoke the hush agreement’s arbitration clause and keep the matter out of the courtroom. One problem: Cohen and his lawyer hadn’t invoked the arbitration clause yet, so arguing against it was premature.
Judge S. James Otero pointed this out when he denied the motion, but he didn’t stop there. He also added a footnote criticizing Avenatti’s request for an expedited trial. Otero said the case “is not the most important matter on the Court’s docket,” and that “[r]equests for expedited proceedings, hearings, and discovery not clearly supported by the record and law are discouraged.”
Otero also knocked Avenatti for exceeding the page maximum for motions, using another footnote to encourage both sides to “carefully review” the rules.
After Cohen’s lawyer finally did invoke the arbitration clause, Avenatti submitted a second, humbly-worded motion.
4. He pretended statements from the defense never happened
When Avenatti resisted Cohen’s attempt to put their case on hold while the criminal investigation is going on, he claimed that Cohen’s lawyer hadn’t provided any evidence that there was any investigation going on that was related to Daniels’ lawsuit. This, of course, came after Cohen’s lawyer Brent Blakely filed a declaration where he described the matter, based on his own knowledge. Avenatti argued that Blakely only relied on news reports of the investigation, despite the fact that Blakely clearly wrote, “I can confirm.”
Basically, a lot of his arguments have had Swiss cheese-like holes in them.
Then there was his stunt with the forensic sketch of the man who allegedly threatened Daniels in 2011. Avenatti’s big reveal on The View proved nothing, other than the internet is quick to mock things like this, comparing the “suspect” to Tom Brady, Willem Dafoe, and even Daniels’ own husband.
Yes, Avenatti’s made some solid arguments, particularly when it comes to the bogus arbitration clause in Daniels’ hush agreement. Avenatti rightly argues that the clause is unenforceable because it only addresses disputes between Daniels and Trump, Trump never signed, and Trump never moved for arbitration (only Essential Consultants LLC did, and they’re not mentioned in the clause). Recent developments also help him in his quest to depose Trump under oath.
The fact remains, however, that he hasn’t won anything yet. The court is nowhere close to ruling on whether Daniels’ hush agreement is enforceable, and it’s far from guaranteed that Avenatti and Daniels will ultimately win this case.
Frankly, the only reason why Avenatti even appears to be doing well is because the other side comes off even worse.
[Image via CNN screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.