Oh my God. Oh my God. Ohmigod ohmigod OMG.
Now what?
This Michael Cohen thing.
You're going to have to be way more specific.
He's trying to take the Fifth! He wants the Stormy Daniels lawsuit stopped so he can take the Fifth!
Well. Sort of.
Isn't that huge?
Yes and no.
That's not helpful. You're not being helpful.
Imagine my guilt. What is it that you want to know about? What part of the Stormy Daniels lawsuit don't you understand?
Just a tiny bit of it. Just a bit. Some. Part of it. Just part . . . all of it. I don't understand any of it. I don't know what's going on, I just nod when people talk about it.
Okay. Let's start from the beginning.
So. Stormy Daniels, whose real name is Stephanie Clifford, claims she had a relationship with Donald Trump in 2006 and 2007. She claims that when the infamous "grab them by the pussy" Access Hollywood tape became public, she wanted to tell her story to the media. Once she started shopping her story, she says that Trump — through Michael Cohen — approached her and negotiated a non-disclosure agreement — $130,000 for her silence. The parties to the agreement were "Essential Consultants LLC", a company formed just before the 2016 election, Mr. Trump (referred to as "David Dennison,") and Ms. Clifford (referred to as "Peggy Peterson."
Is . . . is it normal to have a nondisclosure agreement with aliases and a party that's a new company that you just started?
No. No it is not.
Anyway, Ms. Clifford got a $130,000 payment under the agreement. When the existence of the agreement became public in February 2018, Mr. Cohen began making statements about it and about Ms. Clifford, and sought to enforce the provisions of the agreement (including the gag order on Ms. Clifford and the penalty provision) in a secret arbitration proceeding.
Ms. Clifford, through her current attorney Michael Avenatti, filed a lawsuit in Los Angeles County Superior Court asking the court to hold that the agreement is not enforceable, so that (1) she can talk freely and (2) she won't be penalized for talking. You can read that here. Clifford sued Donald Trump "aka David Dennison" and Essential Consultants, the company Mr. Cohen created.
Then, in what they thought was a shrewd move but was not, Essential Consultants removed the case to federal court.
Removed it! Wow. Removal, with the removing and stuff. Exciting. I understand.
. . .
I don't know what that means.
OK. Federal courts, broadly speaking, can hear two types of cases. One type is a case that alleges a violation of a federal statute. The other is a case under what's called "diversity jurisdiction." The idea, historically, is that state courts might not treat someone from another state fairly, so if a case involves disputes from people from different states, you can "remove" it to federal court, and litigate it there. Put simply, if someone sues you in state court, you can remove it — that is, transfer it — to federal court if there is "complete diversity" — if no plaintiff is from the same state as any defendant. Also, the amount at issue has to be high enough.
So here, Essential Consultants (supported by Trump) moved the case from California state court to United States District Court for the Central District of California, because Clifford is from Texas, Trump lives in DC, and Essential Consultants is a Delaware company. The notice of removal is here.
Was that a good idea?
No it was not. Conventional wisdom is that federal courts are better for the defense and more likely to enforce arbitration agreements. However, federal judges move faster and abide by deadlines and rules more closely, and are substantially less tolerant of bullshit than state judges. If substantial portions of your defense are premised on bullshit and delay, don't remove to federal court.
So. What's the issue in federal court?
Well, the main issue is whether the nondisclosure agreement — and especially the part that requires disputes to be arbitrated in private — are enforceable. If they are enforceable, then Trump (and, I suppose, "Essential Consultants") could conceivably get a gag order against Clifford and get massive damages against her for breaching the confidentiality agreement, and could do so through a private arbitration proceeding instead of in public.
But wait a minute. Stormy Daniels already told her story in public. It's been all over the media. All this litigation does is draw more attention to it and, potentially, make Trump or Cohen answer questions about the hush money. How does it make sense for Trump and Cohen to try to enforce the nondisclosure now that the cat's out of the bag?
It's a very foolish move.
Unless, of course, Trump and Cohen are worried that failing to pursue Clifford will signal to others than other nondisclosure agreements will not be enforced.
But really, even then.
Okay. So even Ms. Clifford says that she signed this agreement and got the $130,000, right? So how can she say that she's not bound by the nondisclosure agreement and the arbitration clause?
You can read her arguments in her amended complaint in federal court.
She has three main arguments. First, she says that there was never an enforceable contract. Her argument is this: Trump never signed the contract. Now, normally, that wouldn't be a good argument — Clifford signed it, and she accepted the money, which is enough to enforce it against her. But here the contract has some ill-considered boilerplate language that it's only effective once everyone signs it. Don't put that in your contracts if you're not going to get everyone to sign them.
Second, she says that the contract is unconscionable. Very rarely, a court will refuse to enforce a contract if its terms are too shocking and one-sided. Clifford claims that the million-dollar penalty and other terms, all one-sided, and that there's no penalty if Trump or Cohen breach (by, for instance, Cohen's rant to the media).
Third, she argues that the contract is void because it's against public policy. Courts refuse to enforce certain contracts that contradict strong public policy — as one example, you can't contract to conceal a crime from the police, and can't contract to kill someone. Here, Clifford argues that the contract is against public policy because it's meant to evade federal campaign contribution limits (in the sense that the $130,000 to silence Clifford represents an undisclosed and excessive contribution to Trump's campaign) and because it suppresses speech about a candidate for President.
Clifford argues that because the whole contract is void, the arbitration clause is void.
These are, at least, plausible arguments.
Is that all?
No, in her amended complaint, Clifford threw in a defamation claim against Cohen, on the theory that he justified paying her hush money by saying "Just because something isn't true doesn't mean it can't cause you harm or damage." Clifford claims that's defamatory because it states that she's lying.
I think that's an unusually weak defamation claim — the statement is hyperbole in the context of trash-talking about litigation, and isn't even definite, and therefore isn't a provable statement of fact. Cohen has filed an anti-SLAPP motion against that claim, which I think he might win if the case ever moves forward.
Wait a minute. If there's an agreement saying all disputes are arbitrated, who decides the dispute over whether the agreement is valid?
You spotted the loophole! People trying to enforce arbitration agreements always argue that the arbitrator should decide whether they are enforceable. People trying to break them always argue that a judge should decide first. The law in the area is something of a mess, but it's often the case that the arbitrator decides.
There's a significant exception, and Clifford is trying to take advantage of it. The Federal Arbitration Act generally controls arbitration agreements in federal court. Under that Act, if a party disputes that the arbitration agreement was formed at all (as Clifford does here), the federal court can hold a mini-trial on that issue alone. Essential Consultants has asked the federal court to send the whole thing — including the attacks on the validity of the agreement — to arbitration. But Clifford has asked the Court first to hold a mini-trial on whether the contract was ever formed at all, and — crucially — to allow limited discovery into that point through depositions of Cohen and President Trump.
That's where it was when the shit hit the fan.
The search of Michael Cohen's office?
The search of Michael Cohen's office, which was huge.
This immediately created grave dilemma for Michael Cohen. On the one hand, the litigation in California would require him to testify — in arbitration if not in the deposition Clifford requested — and would require him to otherwise commit himself to facts. But based on that search, the FBI is clearly investigating him based on the hush-money agreement with Clifford. It's likely that the government's theory is that Cohen engaged in transactions that broke campaign finance laws by paying the $130,000 to protect Trump's campaign, and perhaps committed other violations arising from that core violation. It would be absolutely reckless for him to start talking about the circumstances; the only good advice is to lawyer up and shut up.
Incredibly — and uniquely, in the course of the Trump people's behavior in the last year — Cohen has done something smart. Well, sort of. He's decided to preserve his option to shut up. He's asked the federal court to stay the case — freeze it without activity — because it implicates his Fifth Amendment rights in the criminal investigation.
He can take the Fifth in a civil case? I thought that was for criminal cases.
You can take the Fifth anywhere. The difference is the consequence. If you take the Fifth in a criminal proceeding in which you are the defendant, it can't be held against you. The prosecutor can't even mention it to the jury. But in a civil case, taking the Fifth — that is, asserting your Fifth Amendment right to remain silent — can have serious negative consequences. If you're the plaintiff in a civil case and take the Fifth, the case can be dismissed. If you're a defendant, there can be all sorts of other bad consequences. The jury can be told to consider that you took the Fifth. The Court can prohibit you from introducing any evidence on the issues on which you took the Fifth, so that you can't effectively contradict the Plaintiff's evidence. You can be left unable to prove essential parts of your defense. It's pretty disastrous and it's very hard to defend a civil case while taking the Fifth.
So, when faced with a criminal investigation, both plaintiffs and defendants often ask the civil court to stay — freeze — the civil case while the criminal investigation or prosecution is going on.
And do courts to that?
Sometimes they do, sometimes they don't. The Court is supposed to use a five-part test to decide whether to stay the case. The factors are (1) the plaintiff's interest in moving forward and the harm to plaintiff if there is a delay, (2) the burden on the defendant if the case moves forward, (3) the convenience of the court, (4) the interests of third parties, and (5) the interests of the public.
How do you think it will go?
I think Clifford has the better argument by far.
Her opposition brief is very strong. She points out that Cohen has already run his mouth extensively about the hush money transaction in the media, so his interest in shutting up can't be that strong. She points out that Cohen himself initiated an arbitration proceeding to try to shut Clifford up. She points out that Cohen filed a declaration in this civil case about the formation of the contract even after the FBI's search warrant, and gave a statement about the matter the day after the search.
Moreover, Clifford points out that Cohen's motion is extremely vague — it amounts to saying "look, the FBI is investigating the same general subject." He doesn't explain what specific subjects of testimony (including, for instance, the source of funds or his communications with Trump) that could incriminate him. Finally, she points out that the case is of national interest and has attracted huge public attention, weighing against a stay.
Cohen's failure to commit that he will take the Fifth doesn't help either. Perhaps because taking the Fifth is so widely perceived as a sign of guilt (which, of course, it is not), Cohen's not ready to say definitely that he will take the Fifth to any questions about the transaction — he's sticking with the wishy-washy argument that his rights are "implicated." That's compounded by the fact that his lawyers, asked about him taking the Fifth, publicly denied that he had decided to do so, and suggested that doing so was premature. In other words, they undercut their own stay request.
Wow. That's . . . wow.
I KNOW, RIGHT? I think you only get one smart move per quarter out of Cohen. Contemplating taking the Fifth was his. Now it's all downhill until July or so.
So where does this leave us?
Judge Otero, who is hearing this, is a very no-nonsense judge who likes things to be orderly. I expect a thorough written opinion from him on the stay promptly — within days, I suspect. The best thing Cohen has going for him is that he's only asking for a 90-day stay. Judge Otero may look at this daily-escalating national legal catastrophe and decide that shutting down the civil case for a few months to see how things work out is not a bad idea. Or he may just say Cohen hasn't carried his burden of showing he need a stay.
What happens then?
It depends on the ruling. If Judge Otero grants the stay, then Cohen will have mitigated the harm from this very foolish litigation for the time being, allowing him to focus on his troubles in New York. If Judge Otero denies the stay, next he'll have to rule on whether Clifford gets to take limited discovery and get a mini-trial to determine whether the contract was ever formed and therefore whether the case should go to arbitration. If Judge Otero allows that, then Cohen will have to decide whether actually to take the Fifth when confronted with questions. Buckle up.
Will you update this post when Judge Otero decides?
If I feel like it.
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019
She already talked to 60 minutes. What does she want to tell next? What actually happened?
If I slept with Trump I would deny it.
How, in the name of all that is holy and good, is it possible that you, of all people, got through this discussion without making a single reference to the "taint" team?
Another memorable, timely & useful splainer! I feel you'll garner at least as much traffic for it as for your classic on RICO (tho this one's earned somewhat off Stormy's, uh, back).
Keep this quality up and you might leapfrog Ali Velshi in the MSNBC 2018 Q2 sexy host & guests rankings.
All I want to know is if the taint team in NY is currently reviewing the seized material or not. Tweets about Wood's comments in court indicate they AREN'T (TRO denied as moot because "they aren't reviewing anything yet anyway"), but that's all I can find.
Any help, Ken?
Aside from that, my bet is on Judge Otero allowing the stay. There's a strong efficiency argument for it, in that if Cohen pleads in the federal case, or if certain info comes out anyway, the Otero court can use the same info to short circuit fact finding in the civil case.
90 days seems a bit long, and maybe too prejudicial against Stormy. I think I'd expect a shorter time period coupled with a status review. The ordered stay will be a strong indicator of how much pressure the Court is willing to put Cohen, a federal criminal defendant, under. The fact that Cohen filed for removal… I could see as short as a two week stay.
^^^ In the settlement agreement, Trump/Cohen say she has text messages and images regarding Trump. So, presumably, she wants to sell her story, with photos of them together and texts from him of a, ah, delicate nature, to corroborate it.
I should also add – refusing a stay outright is much more likely to be overturned on appeal than a granted but shortened stay (over whatever continuum of likelihood there is for a decision in this case being overturned on a quick interlocutory appeal).
If Judge Otero ordered the case to move forward, could Cohen file a Habeas appeal, on the basis that otherwise he'd be required to appear for the case to move forward?
Good stuff Ken, but I clicked on the link fully expecting to find the words "Beshat" and "Goatfuck".
You let me down.
Thanks for this. I am now smarter.
I still don't get it. Is Cohen pro, or anti pony?
@Zem
Cohen IS a pony. Well, half a pony. Not the front half.
From a pure leverage standpoint, I'm not sure Daniels' unconscionability and void-per-public-policy arguments are very relevant. The problem with those arguments is that they attack the contract as a whole, not the arbitration clause. If the arbitration clause is worded at all competently (which, you know, with these people is not a guarantee, but I'm talking like LegalZoom levels of drafting acuity here), it's going to contain a delegation clause that says that attacks on the validity of the contract as a whole, or even just the arbitration agreement, go to the arbitrator to decide. And the Supreme Court has said (in a case called Rent-A-Center West v. Jackson) that those delegation clauses are enforceable except where something about the delegation clause ITSELF– so, like, one sentence of a twenty-page contract, typically– is illegal. This is next to impossible to show.
This is an extremely stupid legal position– if the contract itself is void in its entirety, say because someone induced you to sign it by defrauding you, it's nonsensical to say that the arbitration-delegation clause is nevertheless enforceable–but the current conservative SCOTUS majority has adopted a whole bunch of extremely stupid legal positions in a quest on behalf of big business to turn arbitration clauses into legal get-out-of-jail-free cards. This is only at an intermediate level of stupidity by comparison to some of their other rulings. In any event, the law on this point may be stupid, but it's also clear.
So the only really important argument is the contract-formation argument. For whatever reason, while courts are willing to say that signing an illegal contract can bind you to arbitrate under that illegal contract, they are not yet willing to say that not signing a contract can bind you to arbitrate under that nonexistent contract. (Although they are at times willing to take some remarkable liberties with the concept of offer and acceptance.)
This delegation point is a pretty minor one, but it really sticks in my craw every time I run across the issue in the context of arbitration agreements.
I don't get what makes the contract involving David Dennison and Peggy Peterson valid in the first place. How does the court accept hearing civil litigation when neither of the supposed parties is actually pleading to the court on either side? Why can't Daniels just walk and say "this Peggy Peterson person isn't me".
Jake says April 16, 2018 at 5:44 pm:
Ditto. Well, at least now I'm less clueless.
The facts would make for a great combo civ pro / crim pro / con law exam question from hell.
Can we get a bonus lawsplainer on Hannity's "he wasn't my lawyer but our communications are privileged" claim?
Hey, so you mentioned Cohen filed an anti-SLAPP motion. Presuming he did that under CA's anti-SLAPP law, does he still get the benefits of that if he just had the case removed to federal court?
Ken, I saw you discuss on Twitter how deep the Deep State is, given that Judge Kimba Wood was a Reagan appointee.
I worked with her briefly but intensely when she was in private practice as an antitrust partner at LeBoeuf, Lamb, Leiby & MacRae. In a consolidated set of federal antitrust cases brought against a few dozen commercial general liability insurers by the DoJ and a ton of state attorneys-general, she represented one of the main defendants. There was a parallel lawsuit against some but not all of the same defendants in state court in Texas, and I represented another main defendant there. There were thus over forty different defendants who, though their respective counsel, met in the early stages to hammer out a comprehensive joint defense agreement — what privileged information we'd share with one another, what we might share with only some of each other, what we wouldn't share at all, how much notice had to be given before anyone flipped and started talking to the DoJ and state AGs, etc. I recall something like 80 lawyers in a huge hotel conference room. And she ran the whole show pretty much the way Dwight Eisenhower ran D-Day. She was phenomenal, and of course knew everything about privilege maintenance and assertion and piercing — had been there, litigated that, and had the souvenirs in her forms files.
So as I read Cohen's lawyers' BS sworn declaration, filled with nothing but obvious exaggerations and the skimpiest of detail, sworn to by one of Cohen's lawyers who couldn't possibly have — and therefore didn't allege — personal knowledge of anything he was swearing to, I thought to myself, "She is going to frown when she reads this."
Thanks for your commentary.
(Coincidentally, and much more briefly, Zoe Baird was involved in the same case, as in-house counsel for Aetna. Small world.)
Cohen had a legal duty to contact Hannity when he learned of the search warrants’ execution last Monday, to warn Hannity that the seized files might include attorney-client confidences which might be compromised through compelled disclosure. Cohen’s lawyers reported in their morning letter-brief that they did so at some point (presumably over the weekend), and that Hannity objected to having his name revealed. Cohen’s lawyers duly included in their filing this morning a hasty section regarding the right of an anonymous client to stay anonymous in these circumstances, because yes, that comes up not infrequently, and yes, there is some precedent on point from prior cases.
If they had two working brain cells, though, Cohen’s lawyers also warned Hannity that Cohen is now in criminal jeopardy himself, which creates an insuperable conflict to Cohen personally trying to represent Hannity in keeping Hannity’s name out of things. And they surely urged Hannity to get his own lawyer, ASAP, if Hannity wanted to try to assert, under seal or in closed proceedings or otherwise, his privilege claims on his own.
Hannity treated all this alarming information as if it were a wedding invitation, to which he could politely RSVP his regrets. With Hannity declining to show up through new counsel — as Trump did! — to assert his own privilege. With a frankly not very persuasive or factually supported burst of last-minute briefing from Cohen's lawyers that the government hadn’t even had a chance to respond to, Judge Wood denied the request to keep Hannity’s identity secret.
At that point, Cohen’s lawyer and/or Cohen himself could have said, “Well, Judge, with respect, I decline at this time to reveal this name, and I intend to seek an emergency mandamus order from the Second Circuit overruling your ruling. At that point Judge Wood would have ruled that Cohen was in contempt, put him nominally into the U.S. Marshal’s custody, but sprung him (or his lawyer) long enough to go to the Second Circuit on an emergency basis.
But instead, they caved. So if you're wondering how long Cohen will hold out before flipping on Trump, you can consider how long and fiercely Cohen and his lawyers fought to protect Sean Hannity's identity:
About six hours, by my count.
Susan McDougal, Cohen ain't.
Of course Stormy Daniels can't possibly benefit from the publicity , win or lose.
She's not a particularly shrinking flower. Considering her previous run for Senate it isn't possible she having a good time.
I wonder if she has a financial backer, given her offer to return the $130K, I'm pretty sure someone was willing to pay it for her, possibly as part of a book or movie deal. She may have a deal that would satisfy any judgment under the agreement and sh gets the attention.
Ken, you missed one small detail: not only did Trump not sign it, Trump is claiming he didn't know about this contract or the payoff.
If Trump is telling the truth this is a problem because Trump (under an alias) has certain duties in the contract.
Trump is probably lying but if his public statements are taken at face value this is yet more grounds to attack the NDA's overall validity.
Oh, eek! You mean she's not doing it simply because It's The Right Thing To Do ™?
I'm shocked, shocked I tell you!
The judge is a Soros buddy.
Not exactly impartial IMO.
Given what Hannity said on Monday, I’d love to know if Cohen and Hannity actually spoke / emailed prior to Cohen’s filing the paper about his direction from his third client.
Question for the group: is Cohen in possible perjury jeopardy re this paper? Will the judge care enough to inquire or is she likely just to let it go?
MSimon, my apologies, but I didn't realize Soros was involved in this case. Can you please remind me what specifically his involvement is that being friends with him infers bias? I have a headache, so the fewer "derps" the better.
If Cohen hasn't been informed as to what the charges are against him, how is he supposed to know what could incriminate him?
The charge against him is "you might have something we can use to get Trump."
That is all it needs to be. They'll sift through his papers and electronics in order to find some violation that they can blow up into a federal case with 12 counts and 26 years in prison so that they can force him to roll over and tell them something, anything that implicates Trump – in something. Anything.
That's what is wrong with a Special Counsel. He's ostensibly supposed to be investigating foreign interference in the election – but he is clearly investigating "Trump and his associates". And he has the leeway to keep investigating people instead of crimes until he gets what he wants.
Actually, her Deep State membership lapsed last year, so she's okay.
I'll ask again — if he comes across evidence of other crimes during his investigation, what is he supposed to do with them?
This has got to be one of the best openings for a lawsplainer.
Send them to other bodies for investigation, like the Southern District of New York, I gather. I imagine that if he uncovers something in the course of the investigation that doesn't break federal law, but does break state law – say, money laundering in real estate transactions in New York – he can send things off to the relevant jurisdiction.
And this is supposedly all the pretext you need to get DOJ approval, and get a judge to sign off on what will probably be one of the most scrutinized search warrant applications in history?
With this group of people who have acted for decades as if laws, ethics and basic human decency don't apply to them, with that much money, I'd be shocked if there weren't a mammoth amount of fraud and other illegal behavior running through Cohen's office.
Beldar,
The beauty of the whole Hannity being an anonymous client thing was blown out of the water when Hannity then went on Radio, TV and Twitter and claimed Cohen never did any legal work for him, he never paid him and they never executed a legal agreement that would have made Cohen his lawyer. (probably did this to assert to loved ones Cohen didn't cover up an affair for him).
He did try to walk that back a few hours later after people pointed out that without attorney-client privilege everything Cohen has (including recordings) could be unprotected. It was quite the theater of stupid moves on the part of Hannity.
Oh baloney, it's been all over the news, the Fed's think he violated campaign finance laws by making a $130K contribution to the trump campaign and then sought to conceal the origin and financing of that transaction (which probably created a money laundering charge).
The problem with being a "Fixer" like Cohen is that you are constantly doing shady and illegal shit and eventually it's going to catch up to you. I have no doubt in my mind that the taint team is going to find all sorts of interesting things in those files that won't be protected by privilege and Cohen will finally reap what he sowed over the years acting like a mob enforcer.
The more interesting bit to me is that the Fed's have now apparently found evidence that Cohen did in fact go to the Czech republic, contrary to his denials, which links a whole chain of events in the Steele dossier on coordination with the Russians in the Czech republic which supposedly didn't happen because Cohen never went to the Czech Republic. If this happened then the bulk of that dossier is probably true.
And just to clarify: The $130,000 campaign contribution being referred to is not from Cohen directly to Trump's campaign. It is the $130,000 that Cohen paid to Clifford on Trump's behalf to prevent reputation damage so close to the election.
Great but you didn't answer the key question: Why is Stormy really doing this, with a high-powered so high-cost lawyer? The extent of the effort does not add up to their claim of defending her honor and demonstrating Donald Trump is a pig (and nullifying a $20 mm liability in Cohen's suit). They see some payoff, monetary, from this. What is that? How will Avenatti's fees be paid? For this case you'd need a multi-million dollar payoff. Where will that come from?
I don't see how you could interpret Cohen providing $130K for a settlement out of his own pocket as anything but a direct contribution to Trump's campaign.
If it was Trump's money I might agree with you but this was all Cohen's money according to his numerous statements and it was made to help Trumps campaign, IMO that makes it a direct contribution to the campaign in violation of contribution limits. Apparently the Fed's agree as they got a judge to sign a warrant because of it.
@Argentina Orange
As noted in Ken's previous article on the search, "the FBI would have left the warrant itself — and that shows (1) the federal criminal statutes they were investigating"
Cohen will not have been informed of what he's been charged with because, well, he's not yet been charged with anything yet, that's not how the law works, you investigate someone and then you charge them. But he has been informed of what the grounds for investigating him are, and he'll know what's incriminating because he knows what crimes he's committed. He just doesn't know which ones the Southern District of New York already knows he's committed.
Completely off-topic, but is Mr White thinking of doing a screed on that Infowars bloke (Jones) being sued by Sandy Hook victims? I ask because according to Buzzfeed, the Infowars lawyer, Ogden, said things that Popehat has decried in the past:
Someone perhaps show this to Mr White? Then stand well clear?
@Trent – I agree. From a legal and practical point, it's a contribution to the campaign.
If he wasn't a candidate, it'd still be potentially laundering and maybe an income tax issue given $130,000 is well over the $14,000 limit in 2016 for the gift tax exclusion.
I'll admit I don't know anything about campaign finance law, but if Citizens United vs. FEC means that spending money is a type of speech and corporations can spend as much as they want to support a political candidate, why can't private individuals also spend as much as we want to support a political candidate? (Did I just make myself the antagonist in the next Lawsplainer?)
I await more thoughtful input on the matter, but my understanding of Citizen's United is that the ruling is more nuanced than allowing "corporations can spend as much as they want to support a political candidate." It allows corporations to spend ("expenditures") as much as they want to run ads that are political in nature (as an exercising of their 1st Amendment free speech), though I don't believe the ruling allows unlimited unfettered donations to the candidate. Furthermore, such political ads still have disclosure requirements. And so, even with the Citizen's United ruling, campaign contributions, (including those by individuals) are still capped by law.
This whole thing is fucking ridiculous. I can't believe Ken is sporting this much wood over BS like this (Wow!…I mean Wow!!).
Shouldn't there at least be Russian salad dressing involved here for any of this to have even the slightest relevance to anything important?
Trump in the White House is making our country look like a bunch of foolish yokels on the world stage but it is this smooth ballet of legal due process, this emerging image of justice being served, slowly manifesting itself on the vast canvas of America's Rule of Law….This is what it looks like when the adults are back in the room and this is why we are still the envy of the world.
Do I have that right?
@polo: She can probably get a 7-figure book deal. Also she wants to release the pictures and generally humiliate Trump further. I'm sure the lawyer has some deal with her like he gets a percentage of any book/appearance fees she gets. No conspiracy needed, just a pissed-off lady with some disgusting Presidential dick pics on her phone and major regrets about "selling" her story for a mere $130k.
What a time to be alive!
This stuff about the judge being a Soros buddy — that's exactly the kind of character assassination, speculation, and frankly, pulling stuff from out of one's nether regions that I hate the most about Trumpkins.
Kimba Wood is a Reagan appointee. She's well respected and vastly experienced. I worked with her in private practice just before Reagan appointed her. When Clinton later briefly nominated her to replace the withdrawn Zoe Baird nomination for AG, it was precisely BECAUSE she was a Reagan appointee from a BigLaw firm with massive corporate clients and blue chip credibility that he picked her — a reaching across the aisle selection. She'd have been a vastly better AG than Janet Reno.
But no, you Trumpkins read somewhere that she did a wedding for someone you can use to try to sleaze her with, and suddenly that's an internet fact. Everything she's ever done, her entire career, can be ignored. YOU KNOW everything you need to know, which is that six years before this case was randomly assigned to her, she presided over a wedding, and therefore: CORRUPT!!1!
Let me give you a clue, for free: Being a judge really sucks in a lot of ways, and almost every one of them, good or bad, gets heartily sick of the conflict, the combat, the constant obligation to disappoint one or both sides.
As a consequence, almost every judge I know loves, if their jurisdiction gives them power to do so, presiding over adoptions. They love to swear in naturalized citizens. And they love to preside over weddings. No stress, no mess, quick to finish, no one appeals, and everyone goes home happy.
A former colleague of mine is finishing a long career as a Harris County District Judge. He's famous at the courthouse for being willing to marry almost any two people who show up in his courtroom with a license in hand, scheduled or (inevitably) un-, during bathroom breaks for the jury or whenever there's a spare moment. His default ceremony, unless you ask for something else, is to ask, "So y'all want to get married?" If they both nod, he says, "Well, okay then, now you are!" And then he taps the gavel for show (he doesn't do that OTHER than for show, never during a trial or hearing) and he comes from behind the bench to shake their hands and congratulate them. His nickname at the courthouse is "The Love Judge," and he's told people for years that doing weddings is the best mental health medicine he's ever found.
This is a nothing burger. This is the most ridiculous fantasy paranoia I've seen in calendar year 2018 from any source.
Grow up, Trumpkins.
I am trying to discover if there was another hearing today in Judge Wood's court to present suggestions for special masters. I thought the Judge asked for those "Tuesday" which I took to mean today–but have seen nothing on the news about any other proceedings… And is it possible that the DOJ team will challenge the nature of Mr. Hannity's role as "client" of Cohen's–which appears window dressing after Hannity's disavowal of any "real" attorney-client relationship? And if that occurs how will it impact documentation's priviledge determination?
Appreciate any insight–not attorney but extremely invested in the legal maneuvers especially since Cohen seems totally incompetent to be an effective lawyer or to hire ones…
@Neo
Thanks. Citizens United makes a lot more sense now.
@Beldar
It's nice to know judges are almost universally in a good mood for weddings, adoptions, and swearing in naturalized citizens, even if the reason sucks.
The bank fraud stuff might be the bigger deal.
And of course, every time I slept with Trump I denied it. I'm pretty sure the pony would deny it, too. The janitor had a tragic accident.
I take nothing from CBS News on faith, but I have enough independent knowledge to verify this article’s overall accuracy, including the statements regarding her reputation on the SDNY. As the article points out (boldface mine):
“Bunny trainee” means “cocktail waitress trainee,” not centerfold trainee. But typical of Bubba’s hypocrisy, I guess. She’d have been a hell of an AG in my opinion, chosen as she was from across the aisle. The article asserts:
So I suppose y’all can make up your own minds about her. Mine’s made up, I confess.
If Cohen really didn't tell Trump or anyone else at the campaign about the payoff then it wasn't a contribution, it was an independent expenditure, and there are no limits or restrictions on those.
You are talking about law enforcement and prosecutors, right?
@Beldar:
If you are pretending that George Soros was just wandering around the courthouse looking for a JP and happened to run into Kimba Wood, then frankly you're too dishonest to be worth talking to.
@Sol
Yabbut, doesn't the fact that this raid happened in the first place indicate that whatever the warrant was for, anything else they find out Cohen's on the hook for? If nothing else, then he's going to be guilty of having a lie written down in the FBI's magical truth-telling notebook.
No. Sheeez. What he's saying is that often, you don't have to be besties with the judge to get them to officiate your wedding. It's not an onerous distasteful task they are going to voluntarily endure only for inner-circle close friends or people calling in favors.
Relationships in the legal world bear a strong resemblance to the Looney Tunes Ralph and Sam "sheepdog and wolf" cartoons. For those who aren't familiar with that series (65 years ago!!), those depicted a sheepdog (Sam) and wolf (Ralph) chitchatting as they walk up to a timeclock together with their lunch pails. They'd punch in to "work", and then spend the day doing their best to thwart each other — Sam trying to steal the sheep and Ralph defending them — and when the whistle blew, immediately dropped out of their work roles and went back to the chit-chat and punched out and walked away together.
But there are limits and restrictions on attorneys purporting to represent clients in matters where the lack the authority to do so (attorney discipline), and even more substantively on attorneys fostering contracts that purportedly bind such clients to obligations that they have not agreed to (civil fraud). Given the general sloppiness in Cohen's work, there's may be facts to support mail and/or wire fraud in such a case (criminal fraud), and Cohen will be wishing this was merely a campaign finance violation (usually but not necessarily enforced through fines).
@Milhouse
But if he didn't at least tell Donald (his client) about the agreement, that's professional misconduct severe enough to get him disbarred. So I guess he needs to decide which carries the more severe penalty before he decides what story to go with.
Independent expenditures are defined in 11 CFR 100.16(a). Creating a shell corporation to pay off an adult actress isn't found there. Cohen's $130,000 is pretty clearly an illegal campaign contribution.
If Cohen were smarter, he would have created a 527 organization to funnel the money…but he isn't smarter, he's Michael Cohen.
Have you ever been involved in a wedding? The officiant/celebrant is chosen because of some emotional connection/meaning to the participants. At least most people. I guess it's possible Soros is the kind of guy who says "I'm getting married, Franz will you go through my rolodex and find a judge who isn't busy that day?"
The judge may be willing to officiate for anyone who walks by, but people who have planned-out weddings don't choose judges at random.
Does anyone know if presidential immunity applies to state laws?
The presidential power to pardon doesn’t.
Yes. My own.
Nonsense. Don't try so hard to win whatever absurd point you're trying to make about the Judge. Your opinion on the proper choice for officiating anyone else's wedding is arrogant and foolish.
My late wife of 21 years and I were married by a retired judge who we'd never met before that day and never spoke to after. It was a wonderful, meaningful ceremony that everyone who attended enjoyed. The judge included. I assure you, your wedding, if you've had one, was better in no way.
Judgemental much? Best of luck in your own marriage.
@ Argentina Orange, who wrote:
Bill & Hillary Clinton attended Trump's most recent marriage. They were photographed together, posing for the cameras and being seen to be seen by all the movers and shakers of the ACELA corridor.
If you want to engage in conspiracy theories about what secret future promises were sworn in blood at the pre- or post-nuptial ceremonies, how about starting there?
I don't know or care how Judge Wood came to preside over Soros' civil marriage ceremony. It's not inconceivable to me that he wanted a big name, but not a rabbi or priest or preacher, and that he had someone ask the immediate-past Chief Judge of the Southern District, Judge Wood, to preside for that reason. No, I doubt Soros had to walk any hallways. At a minimum, I'm sure he knows someone who knows someone who knew her.
Or perhaps they're social friends. Perhaps they're both on some of the same charitable boards of directors, or they've lived in the same condo building and saw each other at the elevators. Judge Wood was a senior partner at a major Manhattan law firm and then rose to the pinnacle of the local judiciary. My very, very strong hunch is that she's had at least passing and social dealings with Donald Trump, too. Regardless, if there are any connections between Wood and Soros beyond her having done the same thing that judges all over the country literally do on a daily basis — preside over a secular wedding, including (indeed mostly) for people they don't know or barely know — has not been demonstrated or even convincingly alleged.
I know that George Soros is a very convenient boogeyman for the dimwitted on the right, as the Koch Bros. are convenient boogeymen for the dimwitted on the left. But neither he, nor any company he controls, nor anyone else closely connected to him, is involved — as a litigant or intervenor, as a real party in interest (like Cohen's clients, including Hannity), or in any other fashion — in In re Search Warrants Executed on April 9, 2018, No. 1:18-mj-03161-KMW (S.D.N.Y).
The leap you're making, from wedding to secret pact to screw Trump first chance she got, is worse than the Roswell moonbats. This is tin-foil hat stuff.
I'm not going to comment on honesty, but I do agree that one of us is not worth talking to, so let's you and me agree not to talk further, either to or about each other, forever, okay? Cheers.
Here's another person to tell you that you're a moron. I met the judge who married my spouse and I once before the wedding for about five minutes, and haven't seen him since.
Stop being a tinfoil hat dick.
If I were Trump right now, I would be in the market for a new consigliere.
My wife and I were married by the assistant mayor of Fira, Greece. His name was Nikos, he wore a white suit and had a lot of chest hair. He was just the guy who did the wedding.
Has anyone considered the possibility that Cohen was not Trump's choice but the Rusian mob's choice—
If Cohen's FIL was the one who "suggested" Cohen to Trump, maybe that was not just a suggestion but more of an order–from the people both sides did business with–Cohen's father in law has more mob ties than a shoelace factory…
Cohen was someone they trusted more than Trump, from THEIR inner circle set to watch the henhouse hatching all their eggs?
We may not understand the true nature of their relationship because Trump has been in the limelight for so long and Cohen was considered a "fixer" for Trump…but perhaps that was third on his list of duties…
Maybe Trump wasn't the hammer–but the nail…
The federal judge I externed for married us.
He was the first Chinese-American federal district judge in the continental united states. So that ties me to CHYNA. CHYNA is a foe of America and Trump, which ties it to SOROS.
So I'm only two steps removed from Soros.
I read yesterday that Gorsuch was paid off by Soros for his Dimaya concurrence. Trumpists are the boy who cried "Soros." If they ever run across an actual Soros puppet, no sane person will take them seriously.
jdgalt wrote,
Umm, yes. Cohen's communications are doubtless still being monitored, with safeguards (via an already existing filter team, as Andy McCarthy at NRO pointed out must have been created when USAO-SDNY got those earlier warrants). Since Cohen is himself now in criminal jeopardy, he has an insuperable, unwaivable conflict of interest that would prevent him from further representing any of the clients whose data was potentially compromised, including both Trump and Hannity.
@Ken
Two steps removed?! Hah!
Soros is supposedly Eastern European, which is basically the same as Far Eastern, especially since they both have "Eastern" in them. That's only one step removed, if you make the probably unwarranted assumption that you're not secretly Chyneese yourself.
Soros has to be the worst boogey man anyone has ever come up with.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing
The following transaction was entered on 4/18/2018 at 4:39 PM PDT and filed on 4/18/2018
Case Name: Stephanie Clifford v. Donald J. Trump et al
Case Number: 2:18-cv-02217-SJO-FFM
Filer:
Document Number: 45
Docket Text:
MINUTE ORDER IN CHAMBERS by Judge S. James Otero:This matter is before the Court on Defendants Michael Cohen, Essential Consultants, LLC, and Donald J. Trump's (collectively, "Defendants") Ex Parte Application for a Stay of this Action ("Application"), filed April 13, 2018. After reviewing the Application and related filings, the Court finds that a hearing on the matter is warranted. Accordingly, the Court SETS a hearing for Friday, April 20, 2018 at 9:00 am [38] (lc)
So can Cohen actually appear for this?
I have not heard Trump say Cohen is no long his attorney for this case…
Will he get one of his nebbish attorneys from Monday to appear?
@Ken
You may regret saying that when you end up on the next episode of Alex Jones…
Noted with interest the incidents of marriage celebrants not having any connection to the partners being wed. Don't know if "most" celebrants do have such a connection, as Ms Orange insists: but where Serendipity surely plays a part, anecdotal evidence doesn't help.
My wife and I were hitched by a Presbyterian celebrant who was a perfect stranger to us – but not, it turned out, to my family. We discovered in idle conversation that he knew my sister well and officiated at my mother's funeral.
I'd be skeptical of 'deep state' implications. Especially in this instance, where true believers want to find some link.
I was married in a civil ceremony, so this was officiated by a judge i had never talked to before.
Yes, I've officiated weddings.
Yes, at least one wasn't an emotional connection with me, religious leadership, nor full of Meaning to the couple.
"Most" people. Why should it matter whether they asked me because I was the closest bestest friend and confidant, or because their first pick decided she'd rather play the organ as a wedding present and the second pick called in sick the night before and the other people who could have performed it were in the wedding party, or because I was available and liked the idea of a fun weekend party with killer food and lots of people I seldom had a chance to socialize with, in exchange for five minutes of easy not-even-real-work in an atmosphere of joyful celebration? And I'm not even a judge with prestige and rank and stuff like that.
If one of the close friends for whom I did officiate showed up six years later on a fraud alert at my professional life, I'd be a bit bummed but it wouldn't change how I researched the incident and wrote up the report. Sure, I'd be really really hoping it was just a false positive, but if it wasn't, oh well, sucks to be us.
My wife's youth pastor at the time did the wedding… I personally did not know him from Adam, or John, or Martha, whoever they happen to be. Now, raise your hands, how many of you married folks had your wife/spouse pick the person performing the ceremony? Bring some reason to the discussion please.
Now, on the other hand, why is not anything being investigated on the other side? Just because they interfere doesn't mean that their "pick" wins…
Beldar says April 17, 2018 at 8:37 pm:
I agree with you that Kimba Wood is a fine judge. But although that last statement is certainly true, it is also damning with faint praise.
A stray dog would have been a vastly better AG than Janet Reno.
Guilty as charged, En Passant! It's a fair cop, guv, and you've got me dead to rights.
(And Ms. Reno, of course.)
Adding http://beldar.blogs.com to my reading list.
Thanks, MGould, but I don't blog regularly enough anymore to justify that.
Well, idk how most people are, but i got married a dozen years ago in the courthouse to a judge who was the only one available. She was so very kind and nice and happy and said this was her favorite part of the day. I didn't know her before that nor did i ever talk to her again. i don't even know if you can pick who you get now or ever in my area. We would not have even thought of that because personally i would have assumed most judges' schedules to be so busy as to just fit this happy stuff in when they have a few minutes free.
I'm sorry, anonymous, but that's hilarious, because you said "to" instead of "by".
you got married *to* a judge who was the only one available, you didn't know her before or ever talk to her again, you don't even know if you can pick who you get….
@Beldar
I've been feeling like Ken isn't blogging regularly enough, too, but I still bother to come here!
is it normal to have a nondisclosure agreement with aliases and a party that's a new company that you just started?
"I — declare — BANKRUPTCYYYY!!!!"