Earlier today, Stormy Daniels’ lawyer Michael Avenatti teased something big with this tweet:
I predict this is about to become HIGHLY relevant in the coming days….
“The mob takes the Fifth,” [Mr. Trump] said at an Iowa campaign rally in September. “If you're innocent, why are you taking the Fifth Amendment?” https://t.co/w1mwCckRqZ— Michael Avenatti (@MichaelAvenatti) April 12, 2018
It looks like this is what he was alluding to:
JUST IN: Stormy Daniels' attorney @MichaelAvenatti says Trump's lawyer Michael Cohen will "plead the 5th amendment against self incrimination" and he "will seek an emergency stay" against the defamation lawsuit. pic.twitter.com/a0qmLEldZV
— MSNBC (@MSNBC) April 12, 2018
A stunning development, the seriousness of which cannot be overstated. https://t.co/xEoGjj7BYZ
— Michael Avenatti (@MichaelAvenatti) April 12, 2018
For more on the implications of this development, here’s Popehat:
So apparently Michael Cohen's team told @MichaelAvenatti — no doubt as part of a meet and confer process — that Cohen will take the Fifth in the Stormy Daniels case and they are going to move for a stay or proceedings (not yet filed). /1
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/2 This is a Big Deal. As I suggested earlier this week, the search — and clear implication that Cohen is at least a subject and probably a target now — hideously complicated his position in the Daniels case.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/3 What shocks me most at this moment, though, is that Michael Cohen is following sensible legal advice — indeed, the ONLY sensible legal advice — to shut up.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
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/4 It's typical in this scenario to ask the civil court to stay the civil case pending the criminal case. But Judge Otero isn't required to do so. It's — you guessed it — you love it — a complicated multi-factor test!
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/5 Factors include (1) interest of Ms. Daniels in proceeding expeditiously and what she'd lose if there's a delay, (2) burden which proceeding will put on Cohen (incriminating himself), (3) court's convenience, (4) interests of other parties, (5) interest of public.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/6 Let me say that the balance of those factors appears pretty dramatically bad for Cohen.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/7 So: if Judge Otero refuses to stay the case (not certain, but the best bet), and allows the preliminary discovery that @MichaelAvenatti has asked for to determine if the arbitration clause is enforceable, Cohen's got a very bad choice.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/8 He can take the Fifth and refuse to answer, which is the only sensible thing, but likely means effectively defaulting and losing the case (more complicated, that's the shorthand). Or he can incriminate himself.
— YourFiveHatsAreUp (@Popehat) April 12, 2018
/9 In short: this is absolutely the right thing — the ONLY sensible thing — for Cohen to do. Trump's not gonna save Cohen's ass; Cohen's gotta look out for himself. Probable result sooner or later: Trumpian efforts to silence Daniels through litigation fail. /end
— YourFiveHatsAreUp (@Popehat) April 12, 2018
We know you’ve heard this before, but … stay tuned.