Michael Avenatti and his client Stormy Daniels suffered a loss in federal court on Monday when Judge S. James Otero dismissed her defamation claim against President Donald Trump and even ordered her to pay Trump’s attorney’s fees. Avenatti, however, appears to be trying very hard to give the impression that the loss isn’t nearly that bad.
In the hours after Judge Otero issued the decision, Avenatti tweeted that even if the decision is upheld on appeal, it really doesn’t matter because Trump and Michael Cohen will have to pay even more money in attorney’s fees in the case Daniels originally brought against them. That case, you’ll recall, is over the validity of the hush agreement Daniels signed to keep quiet about an affair she allegedly had with Trump in 2006.
Be clear – even assuming Trump is owed attys fees from the defamation case (if he wins the appeal), they will be dwarfed by the fees he and Cohen will be required to pay in connection with the NDA case. Not even close. Yet more “winning” from Trump.
— Michael Avenatti (@MichaelAvenatti) October 16, 2018
Law&Crime Editor-in-Chief Rachel Stockman called Avenatti out for his attempt to reframe the situation, but he didn’t seem too thrilled by this.
Truth. Not close.
— Michael Avenatti (@MichaelAvenatti) October 16, 2018
In the early hours of the morning on Tuesday, Avenatti shifted his attack to Trump and his lawyer Charles Harder, and Harder’s statement announcing the judge’s decision to dismiss the defamation case.
“No amount of spin or commentary by Stormy Daniels or her lawyer, Mr. Avenatti, can truthfully characterize today’s ruling in any way other than total victory for President Trump and total defeat for Stormy Daniels,” Harder said.
Avenatti begs to differ, calling Harder’s statement “an outright lie” from the lawyer and the president.
Below is a statement just issued relating to the litigation between Stormy Daniels and Donald Trump. pic.twitter.com/nm0xl99Z86
— Michael Avenatti (@MichaelAvenatti) October 16, 2018
In a statement of his own, Avenatti took issue with the characterization of his client’s loss in this case as a “total defeat” for her and a “total victory” for Trump, given that this was only one of the cases that Daniels had brought against Trump, with the main case still in play.
“As Mr. Trump and his lawyer Mr. Harder know, the main case relating to Ms. Daniels is the lawsuit involving the NDA and the payment of the $130,000 by Mr. Trump and Mr. Cohen in violation of campaign finance law,” Avenatti said. He pointed out that the lawsuit over the NDA came before the defamation case, and has drawn “the most public interest.”
In light of this, Avenatti claimed, “when Mr. Harder and Mr. Trump issued the statement, the purposely lied to the press and the public by claiming ‘total victory for President Trump and total defeat for Stormy Daniels.'”
In a separate statement to Law&Crime on Monday, Avenatti said, “Trump must have written Mr. Harder’s release because it is as deceptive as his claims about the inauguration attendance,” Avenatti said in a statement to Law&Crime.”
In a statement to Law&Crime, Harder addressed Avenatti’s attack:
The President won a total victory in the defamation lawsuit filed by Stormy Daniels and her lawyer, Avenatti. Her case was dismissed—with prejudice—and she will be ordered to pay the President’s legal bill. The ruling is the biggest possible victory that any defendant can win, and the President won it.
We fully expected Stormy Daniels, through her lawyer, Mr. Avenatti, to try to spin their total defeat into something else. Try as they might, they cannot.
The Court’s dismissal order yesterday pertained only to Stormy Daniels’ defamation lawsuit against the President, and my statement responding to that Court Order likewise expressly states that it pertains to the defamation lawsuit.
The remaining case between Daniels and Trump is over whether the agreement meant to keep Daniels from talking about an affair she claims to have had with Trump is valid and enforceable. Harder recently filed a motion to dismiss that case, stating that Trump was not a party to the agreement and has no intention of trying to enforce it.
Avenatti is hopeful that even the defamation case won’t be over, as he filed a notice of appeal on Monday.
Despite Avenatti’s attempt to spin the situation as best he can, the loss in this case is devastating for his client, as it was arguably the strongest case she had in her multiple claims against Trump and Michael Cohen. The defamation claim against Trump was based on his tweet about her use of a forensic sketch of a man who allegedly threatened her to keep quiet about Trump. The president called this a “con job” about a man who didn’t exist. While Judge Otero ruled that the tweet was “rhetorical hyperbole” and regarding a matter of public concern, it would not have surprised me if the decision had gone the other way.
Daniels’ other cases, on the other hand, don’t have quite as much strength. Her defamation case against Cohen is laughable, given that it’s based on a statement that wasn’t even false. Cohen had been asked why he would pay $130,000 to Daniels over allegations of an affair that never happened, and Cohen replied, “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.”
While Daniels took this to be an implication that her claims are false, that’s not really what Cohen said. All he stated was a reason for a payment. If you look at the plain meaning of his words, there’s nothing wrong with making a generalization about things being able to cause damage even if they aren’t true. Ironically, the only part of the statement that’s arguably false is where he said he would always protect Trump, given how his criminal case ended.
As for the original claim about the hush agreement, the immediate issue is whether the case should be decided by a court or through arbitration. Daniels and Avenatti have a strong case for why the arbitration clause in the agreement should fail. The clause only refers to disputes between Daniels and Trump, Trump never signed the agreement, and Trump never initiated any action against her. That being said, if the case were to move forward in court, they’d likely lose anyway, since there still appears to be a valid agreement between Daniels and Cohen/Essential Consultants LLC, where she agreed to accept money in exchange for her silence.
While Avenatti’s tactics are pretty transparent, I can’t say I blame him. If he’s not winning in a court of law, the best he can do is try to garner a victory in the court of public opinion. So far, he and Stormy Daniels have had much greater success there.
Note: This article has been updated with analysis and a statement from Charles Harder.
Ronn Blitzer is the Senior Legal Editor of Law&Crime and a former New York City prosecutor. Follow him on Twitter @RonnBlitzer.
[Image via Drew Angerer/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
