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SDNY Will Be Forced to Talk about Crimes Involving the President Today

At 2PM today, in a court room in southern Manhattan, a lawyer someone hired last Wednesday to represent Donald Trump, Joanna Hendon, will push prosecutors from the Southern District of New York to explain that they have probable cause to believe crimes involving the president have been committed. Here’s why.

Last Monday, the FBI served Michael Cohen warrants listing crimes known to pertain to his taxi medallion businesses and his efforts to suppress information about Trump’s embarrassing sexual behavior, though the warrants themselves probably listed bank fraud, wire fraud, and campaign finance violations as the crimes. “[T]he riders to the search warrants – copies of which have been provided to Cohen – identify the federal criminal statutes under which Cohen is being investigated,” the government emphasized in its memo.

The taxi medallion stuff has no known tie to Trump. The hush arrangements clearly do, but at least in the case of Stormy Daniels, Trump and Cohen have both publicly denied an attorney-client role, which the government pointed out. “President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment.” It’s certainly possible Cohen has claimed to have firewalled Trump in other hush payments in the same effort to avoid campaign finance violations; to the extent that Trump has not been a formal party in those agreements, he may have likewise waived privilege.

And then there’s the crime-fraud exception to privilege, which the government invokes four times in its response to Cohen, describing how an investigative team can legally access such materials without approval from Cohen or his client if a judge okays it.

[T]he Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception). To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

[snip]

In the face of inaccurate and/or overbroad claims of privilege, the USAO-SDNY would be seriously prejudiced if it were not able, through a Filter Team, to evaluate the validity of such claims. As Judge Barbara Jones explained in permitting review by a filter team, “[w]ithout the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means.” [my emphasis]

Even though the FBI informed Cohen he was raided as the subject of an investigation pertaining to his own business, he fought the memo by invoking the part of the US Attorney’s Manual pertaining to witnesses, not subjects, which SDNY corrected.

Cohen’s reliance on the USAM misplaced, but he invokes the wrong section. Cohen cites to section 9-19.220 of the USAM, which, as Cohen points out, applies to “attorneys who are not suspects” of a criminal investigations. See Br. at 22; USAM § 9-19.220 (noting the procedure to be followed when privileged materials are sought from a “disinterested third party”). Cohen, however, is not the disinterested third party contemplated by the USAM. The applicable provision is that which applies when the attorney is a “suspect, subject or target” of the investigation.

And even though he was told he was being investigated for crimes unrelated to it, his lawyers nevertheless treated the raid as part of the Mueller investigation. Their description of communications with SDNY, for example, begins this way, followed by several redacted lines.

On April 9, 2018, Mr. Cohen’s legal counsel was advised in a telephone call by an Assistant United States Attorney from the Southern District of New York, that the Office of Special Counsel (Robert Mueller) had “referred a portion of” the subject matter of the warrants to the U.S. Attorney’s Office for the Southern District of New York. Id. ¶ 31. Each page of the attachments to the search warrants contains a footer with the date “2017.08.02” (August 2, 2017)—that happens to be the same date that the Office of Special Counsel’s jurisdiction was amended by the Deputy Attorney General. One obvious and credible explanation is that the attachments listing the subject matter of the warrant used by the U.S. Attorney’s Office were drafted by the Office of Special Counsel as earlier as that date. [three lines redacted]

The government, in addition to mocking Cohen’s assumption based off the footer metadata, reveals what that redaction hides: Cohen speculated, “see Br. at 10, that the SCO drafted the search warrants.”

Nevertheless, both sides treat Cohen’s attempt to treat this as a question of the Russia investigation seriously. The government provides three pieces of evidence to describe why Cohen couldn’t be trusted to turn these materials over pursuant to a subpoena — because the crimes themselves involve fraud and deception, because he had, by Friday, already invoked the Fifth in the Stormy Daniels civil suit suggesting he’d withhold documents here as well, and because a tantalizingly redacted passage that suggests Cohen or someone else has already started destroying evidence…

In addition, however, the government does contest Cohen’s claim that he fully cooperated with any of the three Russia investigation his lawyer addresses at length in his declaration, which (having treated this raid as part of the Mueller investigation rather than pertaining to separate crimes) he uses to argue that Cohen could be trusted to turn over documents willingly. For example, the government notes that Cohen himself has said he didn’t cooperate with the Congressional investigations (and wasn’t treated as a target).

It appears that Cohen was not a target of those investigations. Additionally, while Cohen claims in his motion to have been cooperative, he offers no support for this assertion. Publicly, Cohen suggested the opposite, telling Time Magazine that he declined a voluntary request from Congress because it was “too broad.”

Even better, and critically important to the Trump filing submitted last night, is where SDNY fact checks the Cohen claim, backed by his lawyer’s sworn declaration, that he hadn’t fully cooperated with Mueller’s investigation because Mueller asked for everything.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The intransigence pertaining to Cohen’s documents involving the Trump Organization continued over to last week’s response. While the Trump Organization (which I suspect is really who hired Hendon) did not request to be party to this fight, they did send SDNY a letter last week demanding that it return every document involving Cohen and the Trump Organization.

USAO-SDNY has already received correspondence from counsel for the Trump Organization (Cohen’s former employer), which referenced the searches conducted of Cohen’s premises and claimed:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege.

As a reminder: in March, Mueller subpoenaed the Trump Organization for documents, including but not limited to Russia. That’s one reason, I suspect, that Cohen believes this raid is partly about supporting Mueller’s investigation (I wonder whether Trump Org is the entity that has started destroyed documents?). And that’s one reason, I suspect, that Cohen’s team made a bid to review the seized documents for responsiveness (they use the word 13 times in their filing) before SDNY’s taint team gets the documents.

That is, in addition to whatever other crimes Cohen has facilitated for the Trump Organization, he wants to make sure that the government can’t use materials seized in this raid to investigate other crimes, such as those Cohen might be suspected of in relation to the Mueller investigation.

Having failed to cooperate with both the congressional and Mueller investigations, which is one reason SDNY cites for having used a warrant rather than a subpoena, Cohen now wants to reset the clock so he can treat this raid as a subpoena rather than a warrant so he gets to decide what is responsive to the crimes he is being investigated for or even to the demands of the Russia investigation.

Frankly, to the extent that Mueller might use Cohen’s own crimes as an excuse to search his documents (which the FBI seems to have sorted, even to the level of describe specific checks on the search warrant returns) and his devices (which they seized) to find materials relating to the Russian investigation, I’m sympathetic to Cohen’s case. Sure, Mueller can and may already be working on obtaining warrants to search for materials he might use now that the devices are in the government’s possession. But given how advanced the Mueller investigation is, it seems the government should be expected to obtain separate probable cause warrants rather than rely on plain view doctrine to search for materials on Cohen’s devices relating to Russia.

All of which brings us to the letter Hendon submitted last night on behalf of Trump personally. Herndon actually goes several steps further than Cohen’s team did (while he asked to do the first review, he made a concerted case to appoint a Special Master to do it), asking that Cohen get copies of the seized materials, after which Cohen will decide what pertains to Trump, which Trump will then get to review to decide whether he will assert privilege, only after which SDNY will be permitted to object.

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;

5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and

6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

This effectively flips the process on its head, turning the seizure back into a subpoena situation. And while Herndon doesn’t make this as obvious as Cohen’s team did, they intend the Cohen and Trump reviews to include a review of responsiveness as well as privilege.

The level of protection provided to the privilege-holder in the familiar context of a grand jury subpoena duces tecum should be accorded to the President here. When a grand jury subpoena for documents is served, the recipient, with the advice of his counsel, reviews the documents in his possession and produces the responsive documents, with one critical exception: with notice to the government, the recipient withholds all responsive documents that he and his counsel conclude are subject to a privilege, identifying such documents in some fashion without disclosing the privileged contents, often by means of a privilege log. [my emphasis]

Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. Here’s the entirety of the section where Herndon addresses the government’s need to seize these documents.

Of course, here, the government chose not to serve a grand jury subpoena, but instead to execute search warrants on an attorney’s office, residences, and effects. The government asserts that this truly extraordinary measure was necessary to prevent the destruction of evidence. (Gov’t Opp. at 14.) But even if that is true, the exigency has dissipated entirely, as the seized materials are now in the government’s control, beyond any of the potential misuses of the materials that motivated the seizure in the first place. Therefore, the fact that the government seized privileged documents rather than subpoenaing them is now irrelevant – except for the profoundly important privilege issues that the government’s unilateral and peremptory action has raised.

The government insists that it is “entitled” to the seized materials. (Id. at 2, 19.) However, to the extent the government seized privileged information, it is not entitled to have that information, much less review it. See, e.g., von Bulow, 828 F.2d at 99 (recognizing the “urgent” “need for timely protection [from disclosure] … where the discovery sought is … blanketed by the absolute attorney-client privilege”). It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.

The government has done what it has done, and it has thereby protected against every notional evil it could have articulated in favor of its action. It no longer has any cognizable interest in proceeding by any procedure other than that which is typically employed to ensure that the attorney-client privilege is fully protected.

Note what has fallen out of the discussion of exigency? The crime-fraud exception, which SDNY had made clear it expected to find ample evidence of.

Elsewhere, Herndon does mention SDNY’s expectations of finding materials that fall under the crime-fraud exception, but she suggests that a taint team cannot be trusted to access the documents first because it might provide the investigative team documents that are clearly not privileged, a non sequitur to the point of crime-fraud exception documents.

The government has assured the Court that “under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege-holder or his/her counsel, or the court’s approval.” (Gov’t Opp. at 6.) Presumably the government intends by those words to comfort the Court, but the government simply cannot make that guarantee. See, e.g., Lek, 2018 WL 417596, at *1-3. As discussed above, under the government’s proposal, the taint team will turn over to the Investigative Team all materials that the taint team itself deems not privileged. If such materials contain any privileged information that the taint team failed to identify, the President’s privilege will be irremediably violated. The President, the public, and the government have a vital interest in ensuring the integrity of the privilege review process, and the taint team procedure is plainly inadequate to the task. [my emphasis]

Remarkably, Herndon suggests that the public (!!!) has an interest in letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.

As the government has said, it’s not clear Cohen has any clients besides Donald Trump.

Which is why I suspect SDNY is going to provide details in court today of the crimes that it has probable cause to believe were committed. Because, in the face of an otherwise compelling claim that this is an exceptional case, what SDNY is investigating is still that Cohen served not to provide legal advice to Donald Trump, but to provide legal cover for fraud.

I have no idea what Kimba Wood will do in response (and I suspect SDNY will challenge the legal precedents Herndon has invoked).

But I suspect we’re going to hear a lot more about how SDNY has reason to believe that Michael Cohen hasn’t been serving as a lawyer for Trump, he has been serving as a fixer for him.

And Stormy Daniels will be looking on as evidence of that fact.

Update: In their filing laying out the scope of what Michael Cohen considers privileged this morning, his lawyers make their concerns about plain view doctrine even more explicit.

The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless.

[snip]

In addition, a Special Master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause. In obtaining the search warrant, the Government had to make a showing of probable cause that Mr. Cohen is in possession of evidence of a crime. The search warrant is designed to allow the Government to obtain that material – and that material only.

And they again invite SDNY to lay out evidence that this stuff isn’t covered under the crime-fraud exception.

Moreover, without proffering any evidence of its applicability, the government referred to the “crime-fraud” exception in its opposition brief, (Gov’t Opp. Br. at 6, 10), and during oral argument. 4/13/18 Tr. at 28. The government also referred to its search warrant application – which we have never seen – as including “evidence for the crimes that were set forth in [a] detailed affidavit.” 4/13/18 Tr. at 60. Since there is, according to the government, an “ongoing grand jury investigation” (which is required to remain secret), it would most certainly be embarrassing and “detrimental” to Mr. Cohen’s clients if he were to reveal their identities publicly.

SDNY Doesn’t Think Michael Cohen Is Much of a Lawyer

In this post, I noted that a bunch of what got seized in a raid of Michael Cohen’s home and office on Monday wouldn’t be privileged.

But boy oh boy was I being nice compared to the way the prosecutors from Southern District of New York dismissed the notion that Cohen was much of a lawyer in this filing opposing Cohen (and Trump’s) efforts to prevent FBI from going through Cohen’s seized documents.

Housekeeping

Before I get into that, a few clarifications on questions we’ve had. First, the filing makes it clear that the referral from Mueller’s office came months ago. SDNY has their own taint team.

The FBI agents who seized materials pursuant to the search warrants were filter agents who are not part of the investigative team and have been walled off from those AUSAs or FBI personnel assigned to the investigation (the “Investigative Team”).

The venue in SDNY is primary. Indeed, they mock Cohen’s representation that Mueller’s team wrote this warrant application by pointing out his misunderstood the metadata of it.

Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation. Cohen’s speculation, see Br. at 10, that the SCO drafted the search warrants is unfounded. The date in the bottom corner of the attachments is the date that the USAO-SDNY’s standard form search warrant rider was most recently updated for use by the office.

Given that Mueller handed off this part of the investigation entirely, then, it’s highly unlikely Mueller thinks there’s evidence of coordination between Wikileaks and the Access Hollywood video, as I laid out here (which is not to say Mueller isn’t happy that SDNY has raided Cohen).

In addition, the filing makes it clear that Geoffrey Berman has recused, with Robert Khuzami acting as US Attorney for this investigation.

The filing also reveals the scope of the search: “Michael Cohen’s residence, hotel room, office, safety deposit box, and electronic devices,” even while noting that they limited their search to certain categories of documents.

Not much of a lawyer

The lawyers from the famously self-important SDNY spend much of their brief not just demonstrating that Cohen was not serving as an attorney in the seized materials, but that he’s not much of a lawyer in any case.

The repeatedly note he has few if any clients besides Trump.

Based on information gathered in the investigation to date, the USAO-SDNY and FBI have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.

In a long passage arguing — as I did — that much of what was seized would not be protected by privilege, they sniff about how Cohen differs from a “traditional law office,” mocking the idea that he “holds himself out as a practicing attorney.”

Although Cohen is an attorney, he also has several other business interests and sources of income. The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings. As set forth below, unlike a search of a traditional law office, the information gathered thus far in the investigation suggests that the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.

Nevertheless, because Cohen holds himself out as a practicing attorney, each of the search warrants contains the following provision: Additionally, review of the items described in this Attachment shall be conducted pursuant to established procedures designed to collect evidence in a manner reasonably designed to protect any attorney-client or other applicable privilege.

When appropriate, the procedures shall include use of a designated “filter team,” separate and apart from the investigative team, in order to address potential privileges.

In one redaction, they suggest something about Cohen’s recent behavior suggests he couldn’t be practicing much law.

Cohen’s discussion in his own memo of the Strategic Partnership between him and Patton Boggs is entirely redacted (it may be included in the significant redaction on page 3), but in the government’s memo much of it remains unredacted. Which means this redaction might state, in more damning terms, what is described elsewhere — that they cut him off on March 2, in part because he had brought in only 5 clients for the $500,000 a year he got paid.

SDNY goes on at more length about how weak Cohen’s claim that his marketing relationship with Patton Boggs creates a great risk of privilege in the materials that got seized.

Second, Cohen’s claim to have privileged communicatons through a law firm that he describes as “Law Firm-1” omits facts about his relationship with Law Firm-1 that render it unlikely that a significant volume of attorney-client privileged material – if any – was seized in connection with Cohen’s relationship with that law firm. Specifically, on or about March 1, 2017, Cohen—through his wholly-owned entity, Michael D. Cohen & Associates P.C.—entered into a “Strategic Alliance Agreement” with the law firm (the “Agreement”).6 Among other things, the Agreement provided that Cohen would receive a $500,000 annual “strategic alliance fee” from the law firm. Under certain circumstances, Cohen would also receive a percentage of the fees charged by the law firm for clients introduced to the law firm by Cohen. The Agreement also spelled out other aspects of the relationship between Cohen and the law firm, including: (1) Cohen would be given an office at the law firm; (2) Cohen would maintain his own computer server system not connected to the law firm’s computer server system; and (3) the law firm would not have a key to Cohen’s office. In addition, based upon conversations with a representative of the law firm, the USAO-SDNY understands as follows, in substance and in part: (1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm’s shared drives or document systems—and vice versa; (3) Cohen’s documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm’s client files.

What is left (and what I’ll deal with in a follow-up) is the way Cohen wields his relationship with the President to try to shield his files.

The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

Bannon Aims to Best Jared Kushner’s Biggest Mistake in Modern Political History

Back in September, Steve Bannon agreed on 60 Minutes that firing Jim Comey was the stupidest decision in modern political history.

In a “60 Minutes” interview that was posted online Sunday night, Bannon was asked whether he considered Comey’s dismissal — which ignited a political firestorm and directly led to the appointment of a special counsel to investigate Russian meddling in the 2016 election, including potential ties to Trump’s campaign — the biggest mistake in political history.

Bannon responded, “That would be probably — that probably would be too bombastic even for me, but maybe modern political history.

“He went on to acknowledge that if Comey had not been let go, it’s unlikely that the probe led by special counsel Robert Mueller would have been established.

“I don’t think there’s any doubt that if James Comey had not been fired, we would not have a special counsel, yes,” he said. “We would not have the Mueller investigation. We would not have the Mueller investigation and the breadth that clearly Mr. Mueller is going for.”

At that time, Bannon insisted that he faced no risk from even the expanded Mueller investigation, and hadn’t even lawyered up.

All that changed, of course, after he ran his mouth to Michael Wolff. Bannon claimed to be offended by the June 9, 2016 Trump Tower meeting. In his apology he would even say the entire meeting offended his life’s work making movies about fighting “the evil empire.”

“My comments about the meeting with Russian nationals came from my life experiences as a Naval officer stationed aboard a destroyer whose main mission was to hunt Soviet submarines to my time at the Pentagon during the Reagan years when our focus was the defeat of ‘the evil empire’ and to making films about Reagan’s war against the Soviets and Hillary Clinton’s involvement in selling uranium to them.”

But what really irked Bannon is that when Don Jr, Paul Manafort, and Jared Kushner met with Russians in an effort to obtain dirt on Hillary Clinton, they didn’t use lawyers as cutouts.

“The chance that Don Jr. did not walk these jumos up to his father’s office on the twenty-sixth floor is zero,” said an astonished and derisive Bannon, not long after the meeting was revealed.

“The three senior guys in the campaign,” an incredulous Bannon went on, “thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the twenty-fifth floor—with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you didn’t think to do that, and you’re totally amoral, and you wanted that information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something, then you figure out how to dump it down to Breitbart or something like that, or maybe some other more legitimate publication. You never see it, you never know it, because you don’t need to. . . . But that’s the brain trust that they had.”

On Monday, the home, hotel, and office of the lawyer Trump has long used as such a cutout, Michael Cohen, got raided. Among the things the FBI sought — in addition to information on Cohen’s own corrupt business — were communications Trump and that lawyer and others had about the Access Hollywood video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be. [my emphasis]

Bannon — and Marc Kasowitz, who sent a lawyer to meet with Trump in the wake of news of the raid — was probably among those associates. After all, Bannon also told Wolff that he and Kasowitz had to deal with a number of “near-death problems on the campaign” pertaining to women — like Stormy Daniels and Karen McDougal — making legal threats against Trump.

Unable to hire prestige talent, Bannon turned to one of the president’s longtime hit-man lawyers, Marc Kasowitz. Bannon had previously bonded with Kasowitz when the attorney had handled a series of near-death problems on the campaign, including dealing with a vast number of allegations and legal threats from an ever growing list of women accusing Trump of molesting and harassing them.

Now, Steve Bannon, the guy who claimed firing Jim Comey was the stupidest recent political decision, the guy who wasn’t so much opposed to political rat-fucking as he was opposed to doing it without using lawyers as a cutout, is shopping a new plan to get Trump out of his legal woes: fire Rod Rosenstein.

Stephen K. Bannon, who was ousted as White House chief strategist last summer but has remained in touch with some members of President Trump’s circle, is pitching a plan to West Wing aides and congressional allies to cripple the federal probe into Russian interference in the 2016 election, according to four people familiar with the discussions.

The first step, these people say, would be for Trump to fire Deputy Attorney General Rod J. Rosenstein, who oversees the work of special counsel Robert S. Mueller III and in recent days signed off on a search warrant of Trump’s longtime personal lawyer, Michael Cohen.

Bannon also wants to fire Ty Cobb, one of Trump’s remaining semi-legit lawyers, as part of an effort to invalidate all the testimony from White House officials — including himself!!!! — based on the claim it should have been covered by executive privilege.

And he is telling associates inside and outside the administration that the president should create a new legal battleground to protect himself from the investigation by asserting executive privilege — and arguing that Mueller’s interviews with White House officials over the past year should now be null and void.

“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”

[snip]

Bannon believes Trump can argue he was given poor counsel by his lawyers on Russia, including Ty Cobb, who has encouraged a cooperative approach to Mueller’s team.

“Ty Cobb should be fired immediately,” Bannon said.

I’m agnostic about whether the Access Hollywood video actually relates to the Russian investigation. If it does, the only conceivable reason to refer it to Southern District of NY would be to establish a clean team — but Mueller’s team has already handled interactions with investigations involving two lawyers and/or legal teams, Melissa Laurenza (who testified that Manafort led her to lie on FARA forms), and Skadden Arps. I do think it possible — highly likely, actually — that Cohen may have been used as a cutout in some hotel room in New England to cover-up other sensitive issues.

But given Bannon’s response, the investigation into Cohen’s cover-up of Trump’s problems with women — including both the Access Hollywood tape and the legal negotiations with Daniels and McDougal — probably implicates Bannon as well as Cohen.

And so Bannon wants to do what Kushner did when he, similarly, realized how much a legal investigation jeopardized him personally: fire the guy running the investigation.

Indeed, Bannon seems so panicked he can’t even remember that such moves rank among the stupidest in modern political history.

Update: One more thing about the Stormy/McDougal/Access investigation. That may come directly out of Bannon’s own testimony, which would explain why he’d want to try to invalidate it.

Michael Cohen’s Stormy Weather: Four Observations

As you’ve no doubt heard, the FBI raided Michael Cohen’s office, home, and hotel today. They were looking for stuff related to his payoff to Stormy Daniels … and other things, including (per the WaPo) “possible bank fraud, wire fraud and campaign finance violations.”

Some thoughts:

Geoffrey Berman, a symptom of Trump’s corruption, is responsible

As NYT first reported, this raid was a referral from Robert Mueller, not something executed by his team.

The prosecutors obtained the search warrant after receiving a referral from the special counsel in the Russia investigation, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who called the search “completely inappropriate and unnecessary.” The search does not appear to be directly related to Mr. Mueller’s investigation, but most likely resulted from information that he had uncovered and gave to prosecutors in New York.

That means Mueller would have presented the evidence to Deputy Attorney General Rod Rosenstein, who would have made the decision to hand off the lead to Southern District of NY, with the folks there buying into not the investigation but the unusual raid of an attorney’s office.

Which, in turn, means it was approved by the US Attorney for SDNY. After Trump fired Preet Bharara (who was honing in on some of Trump’s corruption), he prioritized replacing Preet’s deputy, Joon Kim (who very recently returned to his former law firm). He replaced him not by elevating someone else, but by installing someone — Geoffrey Berman — he had interviewed personally. Berman is, if anything, a symbol of Trump’s abuse, not least because he hasn’t even been nominated formally. He’s a bureaucratic end-around.

And he had to have signed off on this raid (unless he recused, which will earn him the wrath of Trump all by itself).

Update: ABC did confirm yesterday that Berman did recuse. Daily Beast describes that Republican Robert Khuzami’s in charge.

[T]he recusal by Berman the developer’s son, the referral from Mueller is being handled by the deputy U.S. Attorney, Robert Khuzami. He is the son of two professional ballroom dancers.

That’s right, Mr. President, his dad and mom are ballroom dancers!

Deputy U.S. Attorney Khuzami is a Republican and even spoke at the 2004 Republican convention in support of George W. Bush.

But that will only make it harder for Trump to say he is the victim of Democrats.

And Khuzami is an expert at financial crimes, having ordered the arrest of 120 people for securities fraud in a single day during his earlier time as a Manhattan federal prosecutor. He subsequently served as head of enforcement at the U.S. Securities and Exchange Commission.

Trump’s Friday comments probably made this worse

This raid is not all about Stormy Daniels, but some of it is. Which suggests Trump’s comments on Friday, in which he disavowed the payment Cohen made on his behalf, probably made this worse.

Q Mr. President, did you know about the $130,000 payment to Stormy Daniels?

THE PRESIDENT: No. No. What else?

Q Then why did Michael Cohen make those if there was no truth to her allegations?

THE PRESIDENT: Well, you’ll have to ask Michael Cohen. Michael is my attorney. And you’ll have to ask Michael Cohen.

Q Do you know where he got the money to make that payment?

THE PRESIDENT: No, I don’t know. No.

By claiming — almost certainly falsely — not to have known about the payment to Daniels, Trump probably scotched any claim Cohen might make to privilege. It also meant that Cohen either claimed to be representing Trump falsely, or is lying in sworn documents about doing so.

This raid would have had to have been approved over some time, not Friday afternoon. But one way or another, I imagine these comments made it easier for DOJ and a judge to approve the raid, at least with respect to the Stormy Daniels material.

Manafort will shortly get this raid approved for Mueller

Last week, in my analysis of the Mueller filing explaining his mandate, I suggested he was getting some things approved that weren’t relevant to the Manafort challenge but were relevant to the larger investigation.

Like this:

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

So when Amy Berman Jackson rules against what was ultimately a desperate bid by Trump’s campaign chair, she’ll be implicitly approving of practices like “investigating otherwise unrelated allegations against a central witness” if it’s “necessary to obtain cooperation.”

And just to be sure, Michael Dreeben will be on hand for this argument.

Trump has no appropriate lawyer to this task

Trump is wailing right now about this raid.

So I just heard they broke into the office of one of my personal attorn[ey]s…It’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. I’ve given over a million pages in documents to the special counsel. They continue to just go forward and here we are talking about Syria, we’re talking about a lot of serious things…and I have this witch hunt constantly going on for over 12 months now. Actually it’s much more than that. You could say right after I won the nomination it started.

When I saw this, when I heard about it, that is a whole new level of unfairness.

This has been going on. I saw one of the reporters who is not necessarily a fan of mine…he said this is now getting ridiculous. They found no collusion what so ever with Russia.

This is the most biased group of people. These people have the biggest conflicts of interest I have ever seen. Democrats — all. Either Democrats or a couple of Republicans who worked for President Obama. They’re not looking at the other side — Hillary Clinton… all of the crimes that were committed, all of the things that happened that everybody is very angry about from the Republican side and the independent side. They only keep looking at us.

They raided the office of a personal attorney early in the morning. It’s a disgrace. So we’ll be talking about it more.

[snip]

The stock market dropped a lot today as soon as they heard the noise you know of this nonsense that was going on. It dropped a lot. It was up — it was way up. It dropped quite a bit at the end. That we have to go through that. We’ve had that hanging over us from the very, very beginning. And yet the other side they’re not even looking. And the other side is where there are crimes and those crimes are obvious — lies under oath all over the place, emails that are knocked out, that are acid washed and deleted, 33,000 emails were deleted after getting a subpoena from Congress. And nobody bothers looking at that.

Amid the wailing, Trump suggested he might fire Mueller.

“Why don’t I just fire Mueller? Well, I think it’s a disgrace what’s going on. We’ll see what happens,” Trump said. “Many people have said you should fire him. Again, they found nothing. And in finding nothing, that’s a big statement.”

As he nudges closer to firing Mueller, remember: after having chased John Dowd off, Trump has no competent defense attorney.

He may well fire Mueller. But he has no one to guide him out of the morass that doing so will cause.

Stormy Weather Ahead

As you may have heard, there is an interview on CBS 60 Minutes tonight of former Trump paramour Stormy Daniels. In the last 48 hours, there have been a slew of Stormy biographies. From the New York Times, the Washington Post, and CNN. All worth a check if you are interested, but all paint a similar picture.

It is a picture of a modern empowered and self assured woman. She is no slouch, she is bright and ready. It was been all too casual for the press to early on slough her off and characterize her as a “porn star” like that automatically makes some throw away bimbo. Clearly, nothing is further from the case.

The picture that emerges on closer inspection is far different. She is an informed and savvy woman in full. She is a mother and businesswoman, and one who understands and worries about the conflicts between the two. Karen McDougal, in her Thursday interview on CNN came off as genuine and honest, even if somewhat lost in why she is here with all of the public now. Daniels has none of that. And her story is, within the salacious category Trump brings us to consider, far more compelling.

The stories of Daniels and McDougall were literally concurrent, starting with a golf tournament tete a tete at the Tahoe Pro Am. But McDougall presents as a jilted woman once in love, Daniels is flat out a smarter woman who knew then, and knows now, what was up, then and now, and just isn’t going to stand for the rank hypocrisy and lying by Trump and his goons like Michael Cohen.

The rushed out bios linked above largely track each other, but to my eye, the New York Times is the best:

Those who know her well have registered the moment differently. Ms. Clifford has subsisted amid the seamier elements of a business often rife with exploitation and unruly fare; more than a few of her film titles are unprintable. But for most of her professional life, Ms. Clifford has been a woman in control of her own narrative in a field where that can be uncommon. With an instinct for self-promotion, she evolved from “kindergarten circuit” stripper to star actress and director, and occasional mainstream success, by her late 20s. Why would a piece of paper and an executive legal team set her back?
….
“She was a very serious businesswoman and a filmmaker and had taken the reins of her career,” said Judd Apatow, who directed her cameos in the R-rated comedies “Knocked Up” and “The 40-Year-Old Virgin.” “She is not someone to be underestimated.”
….
She has a daughter, a third husband and an expensive hobby: equestrian shows. “She blends right in,” said Packy McGaughan, a trainer on the competition circuit.
….
“Just as these misguided arbiters of the mainstream view an adult entertainment star as an anathema to the political process,” she said, when she eventually decided against a bid, “so too do they view the dishwasher, the cashier or the bus driver.”

This woman is real. Please go read at least the NY Times story, if not the others linked. She is everything you think she is, and far, far, more. And she has no fear. Not of her career, and not of Trump. That has to terrify Trump.

Here is the other thing that is different: Stormy Daniels has Michael Avenatti as her lawyer. Never met or talked to Avenatti before, but I have heard of him in cases (and from auto racing things), and from friends, for several years. He is good.

After three years at O’Melveny, he joined Greene Broillet & Wheeler, a Los Angeles boutique litigation firm. While there, Michael spearheaded many high-profile cases, including a $10 million defamation case against Paris Hilton; a successful idea theft lawsuit involving the reality show The Apprentice and its producer, Mark Burnett, as well as Donald Trump; and a large corporate multi-national embezzlement case involving in excess of $42,000,000.

In 2007, Michael formed the law firm Eagan Avenatti, LLP (fka Eagan O’Malley & Avenatti, LLP), with offices in Newport Beach, Los Angeles and San Francisco. Since co-founding the firm, Michael has been responsible for securing a number of large verdicts and settlements as lead counsel, including an April 2017 $454 Million verdict after a jury trial in Federal Court in Los Angeles in a fraud case against Kimberly-Clark (NYSE: KMB) and Halyard Health (NYSE: HYH) that was featured on 60 Minutes (won every jury question as to every defendant); a $80.5 million class action settlement against Service Corporation International (NYSE: SCI) in another case featured on 60 Minutes and in the international press (settlement reached in the middle of trial); a $41 million jury verdict after a nearly five-week trial in New Jersey; a $39 million settlement in a case involving the alleged theft of trade secrets; and a $13 million plus verdict after a six week jury trial in Palm Beach, Florida (won every jury question as to every defendant). In 2015, Michael prevailed against the National Football League after a two-week jury trial in Federal District Court in Dallas, Texas after obtaining a court order requiring Jerry Jones to attend trial and be cross-examined.

I had heard of him before, but really first watched Avenatti when he took on the National Football League and Jerry Jones. Because of some sports law friends, some of whom were closer to that story, I paid attention. Avenatti is seriously that good, and he has the extra bonus of knowing how to be a good trial lawyer AND play the PR game, personally, well. There are not many such lawyers, and ones tending to the PR more than the law are routinely panned mercilessly here at this blog. For good reason.

If you don’t have a winning strategy with the press, don’t talk to the press. Even if you think you do, think twice and thrice before doing so. Or, by my book, just don’t do it. But Avenatti has a really special combination of savvy, and has proven it long before Stormy Daniels.

Nobody knows how it all ends up, and playing the press is a risky game even for those genuinely good at it. But, so far, Avenatti and Stormy have played Trump and the press like a Stradivarius.

And, if as Trump is reportedly contemplating, Trump decides to get personally aggressive, watch out. He may well have met his match with Ms. Daniels and Michael Avenatti. By my guess, they are almost making bank Trump will try that ill advised tact. Let it be. Please, let it be.

In Bid To SLAPP Stormy Daniels, Trump Admits He Fucked Her

Earlier tonight, Trump’s SLAPP suit lawyer, Charles Harder, is now suing sex worker Stormy Daniels for $20 million, based on the claim that she violated the nondisclosure order with the signatory of the NDA 20 times.

Here’s the operative bit of the filing though.

In suing to enforce a nondisclosure agreement prohibiting Daniels from telling anyone the sad sack she fucked (and has videos fucking) is Donald Trump, Trump admitted that David Dennison, the guy she signed an NDA with, is him, Donald Trump.