Outside the Beltway

Judge Puts Stormy Daniels Lawsuit Against Trump And Michael Cohen On Hold

A Federal Judge in California has placed the Stormy Daniels civil lawsuit against Donald Trump and Michael Cohen on hold due largely to the ongoing criminal investigation pending against Cohen.

Doug Mataconis · Saturday, April 28, 2018 · 5 comments

A Federal Judge in California has put the civil lawsuit filed by adult film actress Stormy Daniels against Donald Trump and his longtime attorney Michael Cohen on hold for at least ninety days based in large part on the criminal investigation that has enveloped Cohen over the past month:

A federal judge in California on Friday ordered a three-month delay in the lawsuit brought by the pornographic film star Stephanie Clifford against President Trump, citing what he called the likelihood that Michael D. Cohen, Mr. Trump’s longtime personal lawyer, will be indicted.

In granting a defense request for the postponement, the judge, S. James Otero of United States District Court in Los Angeles, sided with the president’s legal team that the unusual circumstances of the case warranted the stay of action. Judge Otero acknowledged in his order that complications might arise from an overlap with a criminal investigation into Mr. Cohen.

“This is no simple criminal investigation,” Judge Otero wrote. “It is an investigation into the personal attorney of a sitting president regarding documents that might be subject to the attorney-client privilege. Whether or not an indictment is forthcoming, and the court thinks it likely based on these facts alone, these unique circumstances counsel in favor of stay.”

This development came just a day after President Trump had seemingly acknowledged in a phone interview with the hosts of Fox & Friends that Cohen did represent him in connection with what he called the “crazy Stormy Daniels deal.” In the same interview, though, Trump seemed to undercut the arguments being made by Cohen’s attorneys in New York who are representing him in connection with the ongoing criminal investigation by saying that Cohen handled only a “tiny, tiny fraction” of Trump’s legal work and implied that most of his other dealings with Cohen were in his capacity as a businessman rather than as part of an attorney/client relationship. If true that, of course, would mean that many of the documents and other records that Cohen’s attorney are seeking to have withheld from law enforcement pursuant to the attorney/client privilege would not fall within the protection of that privilege, an argument that was raised that very day by prosecutors to counter the claims being made by Cohen’s attorneys. The ruling also comes just days after Cohen’s lawyers informed Judge Otero that their client would assert his rights under the Fifth Amendment with respect to any questions regarding the transaction with Ms. Daniels given the fact that it was part of the focus of the criminal investigation being undertaken in New York.

Judge Otero has set a new hearing in the case for late July, but it’s quite likely that this delay could continue beyond that date. Taking into account the ongoing criminal investigation and the fact that Cohen has represented that he would assert his Fifth Amendment rights in response to any questions that the attorney for Ms. Daniels or anyone else may ask in connection with the agreement at issue in the civil case, it’s not surprising that Judge Otero would choose to put the case on hold for at least a temporary basis. As a general rule, criminal matters tend to get priority over civil matters in situations such as this and the fact that Cohen would be remaining silent while the criminal case remains opens means that progress moving forward with the civil case would be difficult at best. Realistically speaking, though, it’s probable that the investigation in New York will continue well beyond that July date, leaving Daniels either stuck with a case that’s on hold or hoping that the Ninth Circuit overturns the stay and allows the civil case to go forward. There’s no legal requirement that the case be stayed, of course, but it seems likely that the Judge will probably keep the case on hold at least until its clear what the status of the criminal investigation might be and what impact it’s likely to have on the civil matter.

As noted, Daniels’ attorney, who has pursued an aggressive litigation strategy in court and in the court of public opinion, has said that he intends to appeal the stay to the Ninth Circuit. My guess, though, is that the Court of Appeals is unlikely to reverse Judge Otero in this matter unless an abuse of discretion can be shown. On the face of the ruling, that simply doesn’t appear to exist. Unless and until this decision is reversed or Judge Otero decides to lift the hold, then, this case will remain on the back burner as Cohen deals with more serious matters on the other side of the country.

Here’s the opinion:

Clifford v. Trump Et Al Order by Doug Mataconis on Scribd