It’s not the first time that Trump personal attorney Michael Cohen tried to get a court to put the brakes on the opposition. Back in June, he tried to get a federal judge in New York to restrain federal agents from reviewing documents seized during a raid. The judge, Kimba Wood, rejected Cohen’s June bid, and now her California counterpart, S. James Otero, has rejected Cohen’s July follow-on effort to muzzle Stormy Daniels’s lawyer, Michael Avenatti.
Cohen claimed that Avenatti’s public statements—he had provided cites to more than 170 television appearances and 439 public tweets at the time of Judge Otero’s writing—are detrimental to his case. As Otero reviewed:
Mr. Avenatti's comments include statements that Mr. Cohen "has a history of thuggish behavior" and "is going to be indicted within the next three months" for "bank fraud, wire fraud, campaign finance violations" or "a whole host of potential criminal conduct," as well as speculation about the outcome of various aspects of the case, including that "Judge Otero here in Los Angeles" will order Trump to appear for a deposition because he "is one of the best."
No one disputes that Avenatti’s been on, as Judge Wood put it, a “publicity tour.” But the standard for a court to take the extraordinary measure of telling a lawyer to quiet down just isn’t merited here, Otero notes. The legal standard for imposing a gag order on an attorney during a lawsuit was created in 1985 by the Ninth Circuit, which hears appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (plus Guam). Because it’s a limit on speech—our Constitution’s not big on government-imposed speech bans—any such order has to pass strict scrutiny, meaning it’s presumed invalid until proven otherwise.
The criteria for gagging a lawyer—Avenatti or any other lawyer involved in an active suit—are that the gag prevent an attorney from creating a “clear and present danger or a serious an imminent threat to a protected competing interest”; the gag order is “narrowly drawn”; and there aren’t “less restrictive alternatives” to the gag. Otero finds Cohen’s argument for gagging Avenatti lacking on all three prongs.
In a fine bit of legal snark, Otero notes that “[d]efendant spends the majority of the Application describing in detail the extensive publicity sought by Mr. Avenatti” but never makes a case for how it could affect the fairness of the trial.
Otero notes that this iteration of a Cohen legal battle hinges on the validity of an arbitration clause within a document that Cohen’s not technically party to—the non-disclosure agreement signed by Stormy Daniels and Cohen’s LLC, Essential Consultants, in which she agrees not to discuss her alleged affair with Donald Trump.
Not only is Otero’s California proceeding not the kind of big league criminal prosecution Judge Wood is overseeing—with substantially higher stakes—here Avenatti could even do Cohen a favor with his outspokenness, Otero points out, if they boost his efforts to free Daniels from the NDA. If Daniels is freed, Essential Consultants could be recouping that $130,000 payment it had directed to Daniels in exchange for her silence.
The gag order wouldn’t be narrowly drawn or the least restrictive of the options to get Avenatti in line—much less facially acceptable as a means of ensuring fairness, as Cohen’s asking for the court to target Avenatti and Avenatti only.
Without going into everything that’s overly broad and overly restrictive about Cohen’s request, the answer isn’t a restraining order: If Cohen wants to go after Avenatti, he’s going to have to do so via professional ethics guidelines. And Avenatti is, if only a little, wary of being swatted for professional ethics violations—after all, that’s the threat Wood wielded so effectively against Avenatti when he inquired about formally participating in the New York criminal case against Cohen.