Opinion

Stormy Daniels’ Lawyer Makes The Most Absurd Legal Claim Yet

We’re now reaching the point in our story wherein Michael Avenatti gets completely and totally carried away. Until now, Stormy Daniels’ lawyer, the scrappy, racecar-driving, slick-talking litigator, has done pretty well for his client. He’s conducted a hell of a PR campaign, winning over many viewers who might have been inclined to dismiss the tales of a former porn star, and who are now sympathetic to Stormy Daniels as a victim of the Trump bully machine. In his many public statements about the Trump/Daniels nondisclosure agreement, Avenatti may have danced close to the line of sound legal analysis, but has still kept his representation within the general realm of legal reality. Until Monday.

On Monday, Avenatti amended Stormy Daniels’ complaint against Michael Cohen and Donald Trump; that Complaint had been simply seeking a declaratory judgment in which the court officially pronounced the NDA non-existent and gave its blessing for Stormy Daniels (a/k/a Stephanie Clifford) to openly tell her story. No money damages were sought, and none were anticipated. But Monday’s amendment adds a claim of defamation against Michael Cohen, Donald Trump’s personal lawyer. With that filing, the Stormy Daniels lawsuit has just gone from “longshot,” to “absurd.”

The basis of the defamation claim is a written public statement that Michael Cohen issued to the media on February 13, 2018 relating to the $130,000 payment to Ms. Daniels. In it, 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.”

According to Daniels, anyone listening, “reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is ‘something [that] isn’t true.’”

Here’s the thing about defamation. It requires that a person make a false statement of fact about someone. That’s just not what we have here. For starters, Cohen’s extremely general statement about “something” untrue that potentially could cause harm isn’t specifically about Stormy Daniels. Sure, there are times when a defamation claim can successfully be made about a statement that appears general on its face, but is more specifically meaningful when looked at in context. But this really just isn’t enough. Stormy Daniels knows it, Michael Avenatti knows it, and Michael Cohen definitely knows it – which is why he phrased his comment that way.  I talked this over with my Law & Crime colleague, Ronn Blitzer, who agreed, saying:

“Cohen didn’t say anything specifically about Stormy Daniels in that statement. All he said was that things that aren’t true can still hurt you, and that he’ll always protect Trump. Exactly what part of that is false?”

Even if everyone in the listening world thought Cohen was making some kind of reference to Stormy Daniels, her defamation claim is still a loser –because Michael Cohen’s statement was 100%, unequivocally true. Untrue statements absolutely have the capability of causing someone harm. In fact, that’s the entire basis of defamation as an actionable offense. I get that Michael Avenatti is a creative litigator, but he’d have to twist himself into quite the pretzel to get a court to believe that Cohen’s pretty general and pretty true statement is actually a false statement specifically about his client.

To prove a point of reference, Stormy and her team should check out Summer Zervosdefamation suit against Trump. Zervos gave a detailed press conference in which she accused Donald Trump of having sexually assaulted her.  Trump responded specifically to that press conference, called Zervos’ allegations “totally false,” “phony,” “made up stories and lies,” and, “totally made up nonsense.” He also stated that Zervos and the other women who’d accused him of sexually assaulting them had done so for political reasons. Zervos’ case isn’t a slam-dunk either, because it’s unclear to what extent she could prove damages. But as far as the “statement of fact about the plaintiff” part of the Zervos claim, she’s good to go. Stormy Daniels, on the other hand, seems to be trying to say “Me Too!” here, and not in a good way.

Even though Daniels’ defamation claim isn’t likely to survive round one of the motion to dismiss, let’s take a minute to talk about the other glaring problem: lack of damages. Defamation requires a plaintiff to prove actual, financial damages. Daniels’ Amended Complaint alleges the following:

“Mr. Cohen’s statement exposed Mr. Clifford to hatred, contempt, ridicule, and shame, and discouraged others from dealing with her.”

Putting aside that it’s a little weird that Avenatti didn’t catch the error in his own client’s name,  those damages are a little vague. I’d like to know a little more about the myriad people who’ve been dissuaded from doing business with Ms. Daniels in the last month due Michael Cohen’s statements. Without more detail, such a claim seems premature, flimsy, and just plain not credible. I suppose it’s possible that evidence of the financial fallout could be presented at trial, but at this point, it doesn’t look great.

Now that we’ve moved past the land of declaratory judgments, and have arrived in one of Donald Trump’s favorite legal areas, there’s bound to be more drama on the horizon. Personally, I can’t wait to hear David Schwartz school Michael Avenatti on how defamation works. I hope someone called Anderson Cooper to reserve some airtime.

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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