Tuesday, May 15, 2018

To Quiet the Storm - Michael Avenatti Oversteps

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To Quiet the Storm

The current crisis of government created by the presidency of Donald Trump presents many dangers.  His relentless attacks on the press, diatribes against courts which challenge executive actions, and threats to block the Special Counsel and FBI investigation are unprecedented in their breadth  and hyperbole.  The controversy regarding the President’s payments to a pornographic film figure is now wrapped up with his personal lawyer Michael Cohen’s suddenly lucrative lobbying and consulting business.  The entangling of sexual scandal with financial scandal makes a mockery of the “drain the swamp” meme – but of equal importance is that it threatens to make a mockery of our system of justice
Judge Kimba Wood has before her a motion by Stephanie Clifford to intervene in the matter of U.S. v. Michael Cohen.  In that action Cohen assails the FBI’s seizure of documents that he asserts are protected by the attorney client privilege.  Clifford is a defendant in an action by Cohen and Donald Trump to impose penalties for her asserted breach of a non-disclosure agreement.   How that is germane to the federal criminal and national security investigation of Cohen is a mystery  The Federal Rules make no such provision.   The court has stayed the motion but it still presents a risk of further damage to the dignity and decorum of judicial proceedings.  Participation by Clifford threatens the ability to successfully demonstrate to the public that the investigation of the President and his campaign are being conducted impartially.
In making the motion Clifford’s California lawyer Michael Avenatti sought permission to appear pro hac vice in the Southern District of New York.   Avenatti – who has appeared on CNN daily for the past two months – was the first to disclose what he labeled a “timeline”.  It details the now ubiquitously reported and potentially improper payments to Cohen by Fortune 500 companies like AT&T and the pharma giant Novartis.    But  here Avenatti  seems to have stepped in a pothole with his release of documents regarding Michael Cohen's finances.  Much of the information   has been confirmed but his "timeline" appears to be based on Suspicious Activity Reports.

SARs are  mandated reports which banks generate when they suspect money laundering or other misconduct. They are highly confidential law enforcement documents compelled by the Bank Secrecy Act of 1970.  Avenatti is not a journalist entitled to First Amendment protection.  He is a lawyer subject to the Rules of Professional Conduct.  
RPC 8.4 Misconduct  likely provides grounds to deny his application to appear in the New York federal District Court.
For all these reasons  Judge Kimba Wood should act firmly to quiet the media circus and deny Stephanie Clifford's thinly grounded motion to intervene in U.S. v. Michael Cohen.  Avenatti will have something to answer for in any event.
-        George Conk
-        May 15, 2018

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