April 10, 2018

Raid!

April 9, 2018

Has Cohen testified re: Trump/Russia business dealings?

Mueller recently collared Felix Sater.

If Sater turned and provided information on Cohen's involvement in Trump/Russia real estate dealings, and if Cohen has given wrong or incomplete testimony on that topic, then I can see where they might have gotten enough of a factual basis to apply for the warrant against Cohen.

https://www.cnn.com/2017/09/19/politics/read-michael-cohen-statement/index.html

I assume we will discuss the rejected proposal to build a Trump property in Moscow that was terminated in January of 2016; which occurred before the Iowa caucus and months before the very first primary. This was solely a real estate deal and nothing more. I was doing my job. I would ask that the two-page statement about the Moscow proposal that I sent to the Committee in August be incorporated into and attached to this transcript.

Sater would have known otherwise, and would also have known that Cohen knew.

April 6, 2018

Judge finds Avenatti misunderstands procedure in Stormy Daniels case

As is frequently pointed out on DU, deadlines in court proceedings are usually more flexible than advertised by breathless headlines.

When Judge Otero denied Avenatti's untimely motion for expedited discovery a few days back, the judge had set certain deadlines for the defendants to file a response to the Amended Complaint.

In response to the Amended Complaint, Cohen has filed a motion to compel arbitration, and had sought an extension of time to respond to the complaint itself, since the motion to compel arbitration, if granted, would obviate the need to reply to the contract claims of the Complaint. (On the defamation claim, another motion is coming, but that bridge will be crossed in the near future)

Normally, that kind of extension of deadlines is done by joint stipulation. The counsel will "meet and confer" and file a joint stipulation to the extension. The "meet and confer" requirement can be fairly minimal, and is normally a simple telephone call, which can take a couple of minutes. Judges expect the parties to take care of dealing with deadlines on their own, and don't like to hear that counsel is unable to cooperate on something as simple as scheduling the case. They normally have things like serious crimes, terrorism and life-or-death matters on their docket. Two peacocks strutting over a contract dispute does not make their day joyous.

That process seems to have broken down, with yesterday's filing of an ex parte (i.e. without the other side's consent) motion to extend the deadlines filed by Cohen. Among other things, it states:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.26.0_1.pdf

On April 3, 2018, counsel for Defendants advised Mr. Avenatti of this ex parte application, in writing, on two occasions. Blakely Decl., ¶¶ 8-10; Ex. C and Ex. D to Blakely Decl. On the second occasion, pursuant to Local Rule 7-19.1, Mr. Blakely attempted to schedule a call the following day (April 4, 2018) to discuss the date and substance of this application. Blakely Decl., ¶ 10; Ex. D to Blakely Decl. However, Mr. Avenatti did not respond to Mr. Blakely’s email for over thirty (30) hours, and when he did respond, Mr. Avenatti offered to schedule the call over the weekend (i.e. at least 2 days later). Blakely Decl., ¶ 11; Ex. E to Blakely Decl. In the interim, on April 4, 2018, Mr. Avenatti appeared on at least three national television news shows to discuss this case: (a) Anderson Cooper 360 on CNN; (b) Megyn Kelly Today on NBC News; and (c) New Day on CNN, with Alisyn Camerota. Blakely Decl., ¶ 11.

...

In light of EC’s pending Motion to Compel Arbitration[Dkt. No. 20] (the “Arbitration Motion”), in which Mr. Trump has joined, Defendants requested that Plaintiff stipulate to a 30-day extension of their response deadline, in the interest of judicial economy.Rather than simply grant this routine request, Plaintiff’s counsel, Michael Avenatti, conditioned Plaintiff’s stipulation to anextension on a separate agreement by defendant Michael Cohen (who is not a party to the cause of action brought against Defendants, and is not requesting an extension at this time) to arbitrate Plaintiff’s second cause of action of defamation against him in the event the Court grants the Arbitration Motion. Plaintiff’s attempt to condition Defendants’routine request for an extension upon a separate agreement from a separate defendant (MichaelCohen) is wholly inappropriate and runs afoul of Section B.2. of the Central District’s Civility and Professionalism Guidelines, which states in pertinent part: “Unless time is of the essence, as a matter of courtesy we will grant first requests for reasonable extensions of time to respond to litigation deadlines.”

Today, Avenatti filed an opposition to this request for an extension:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.27.0_1.pdf

Plaintiff’s counsel interpreted this very clear directive from the Court as an admonition to the parties to make sure the parties not deviate from the Cour t’s instructions and that the deadlines “must” be complied with. A stipulation to move Defendants’ response deadline would constitute such a deviation. As a result, both on the phone on Monday, April 2nd, and in Plaintiff’s counsel’s e -mail to Defendants dated Tuesday, April 3rd, Plaintiff’s counsel stated: “(A)s we have previously explained, Judge Otero set out specific deadlines in his order last week, which we believe he intends for the parties to follow. This is not a simple case of moving deadlines set by the FRCP.” (Blakely Decl., Ex. D (Dkt No. 26- 1 at 16); Avenatti Decl., ¶ 3.)

Surprisingly, Judge Otero ruled on Cohen's motion and Avenatti's opposition, within hours:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.28.0_1.pdf

Defendants request that the Court extend the deadline to file an Answer to the First Amended Complaint ("FAC&quot until after the Court rules on a pending motion to compel arbitration, filed by Defendants on April 2, 2018. (See Mot. to Compel Arbitration, ECF No. 20.) Plaintiff opposes this request on the grounds that the Court set a firm deadline for filing a responsive pleading to the FAC in a previous order. (See Order Denying Pl's Mot. for Expedited Jury Trial 4, ECF No. 20.) Plaintiff's argument is premised on the misunderstanding that a motion to compel arbitration cannot be substituted for a responsive pleading.

Courts considering the matter have consistently held, however, that "a defendant in a pending lawsuit may file a petition or motion to compel arbitration in lieu of an answer to the complaint . .. as procedural summaries in arbitration cases uncontroversially reflect." Lamkin v. Morinda Properties Weight Parcel, LLC, 440 F. App'x 604, 607–08 (10th Cir. 2011) (citing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 83 (2000), Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1270 (11th Cir. 2002)); see also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (reviewing a motion to compel arbitration under Federal Rule of Civil Procedure 12(b)(1)).

...

The instant dispute could, and should, have been resolved in a civil manner by the parties without intervention by the Court. A short request for extension, supported by good cause, that causes no prejudice to any party, should be accommodated.

As to the merits of the Application, as Defendants are not required to file a responsive pleading while a motion to compel arbitration is pending, the Court GRANTS Defendants' Application.

For those keeping score at home, Avenatti is 0 for 2 thus far in his motion practice. But it's early in the game, and Team Cohen is sure to provide some howlers before long.

Plus, Avenatti is doing much better on TV. If this case were being tried before Lawrence O'Donnell instead of Judge Otero, it would be pretty much over by now.

March 27, 2018

Did Stormy successfully push March For Our Lives out of Mondays leads everywhere?

So, on the first weekday news programs after the events of this weekend, who won?

Stormy won CBS Evening News and Chris Hayes (in which the March was pushed all the way to a tail end segment).

March 26, 2018

A quick read of the Amended Stormy Daniels Complaint

Since the news media is generally horrible about conveying what is actually happening in litigation, here's the show so far:

1. Trump/Cohen obtained an arbitration award for violating the NDA.

2. Daniels filed an action in CA state court seeking recission of the contract.

3. Trump/Cohen removed the case to federal court.

4. Today: Daniels filed an Amended Complaint in the case. It includes re-tooled allegations concerning the contract, and adds a defamation claim on the basis of Cohen's statement in February to the effect of acknowledging the 130k payment and suggesting that "Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump."

Here's the amended complaint:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.14.0.pdf

Generally, in court proceedings, you have the opportunity to (a) include all of the claims you have, and (b) amend your claims at certain early stages of litigation. This is not a "new" suit. It is the same suit with new claims.

What's interesting is that Avenatti finally included the strongest argument for invalidity - that it was void on policy grounds as an illegal campaign contribution. He had not included that in the original complaint, so it's good to see that he's gotten some help. The only downside to that argument is that it essentially admits that Daniels was actively conspiring to keep an illegal campaign contribution secret. However, the current FEC is unlikely to act anytime soon on the complaints that have been lodged with the FEC on the subject, so Daniels admitting complicity in the scheme is probably not going to amount to anything as far as the FEC is concerned.

To put that another way, let's say that you are involved in scheme to sell cocaine over several shipments. You sign a contract and an NDA. You get paid up front by the buyer, and then decide to stop the contracted shipments. The buyer threatens you with a contract action over the contract, and so you proceed with a declaratory judgment action on the grounds that "We didn't have a contract, because I was selling cocaine!" Well, yeah, that will probably get you out of the contract.

The original Complaint had described unspecified threats or coercion alleged to have resulted in the January 2018 signed denial by Daniels. Those are all now gone from the Amended Complaint, as it is now clear, based on the 60 minutes interview, that the January 2018 "threats" were threats to enforce the contract.

Of course, the other reason for taking out the January 2018 Daniels statement is that it undercuts the defamation claim against Cohen. First off, the defamation claim essentially boils down to it being damaging to Daniels reputation if anyone denies she had sex with Trump. Secondly, Cohen's February statement of "Just because something isn’t true doesn’t mean that it can’t cause you harm or damage" is (a) not a direct statement that Daniels is lying, since it is to some extent phrased hypothetically, but (b) more importantly, if it is taken as an inferential statement to the effect that "Daniels is lying", it is hard to square that with the facts on the ground at that time - i.e. she had signed a written statement that there had been no affair.

In other words, at best, the defamation claim is "Cohen damaged Daniels reputation by agreeing with her signed statement, which she now disavows." And, remember, this Amended Complaint no longer alleges that statement to have been the product of any duress or threats. There is no claim in Daniels' Amended Complaint which alleges any threats of any kind at any time.

So taking these claims together, the Amended Complaint says:

1. The contract should be void since it amounted to a conspiracy among Daniels Trump and Cohen to keep a crime secret, and

2. It is damaging to Daniels' reputation for people to (a) agree with her signed statement at the time, and (b) claim that she didn't voluntarily have sex with Donald Trump.

Oh, yeah, there was something in the news about some payments being funneled from the UAE to Trump. Probably some really boring news that doesn't involve sex in any way, and involves countries that are hard to find on a map.

March 24, 2018

Have you SEEN the Melania Trump recipe collection?

I can't really talk about this, but I know somebody who knows somebody in publishing, and they are working on a rush release of Melania Trump - Fast or Fancy Favorites, which is a collection of her favorite recipes from home and the US, and some of her husband's favorites.

The only issue they are having is names for some of the dishes, so they hired an outside creative firm to come up with appropriate names for them.

Some of the folks on that project are just plain old stumped, so they asked me for brainstorming suggestions in this group.

On the flip side, they have some names which they haven't found recipes for, so here's a couple:

Creepy Fingers Crepes

Dotárd al'Orange

Rhubarb Strumpets

March 22, 2018

Trumps idea of safe sex is using an NDA

“If your NDA causes litigation, stop using your NDA and call your lawyer immediately.”

March 17, 2018

An enginerd speculates on the FIU bridge collapse

I completely realize that actual failure investigation and analysis to pin down exact failure sequences is not something that is done in a weekend. As an avid reader of NTSB reports on stuff that happened years ago, those things are awesome.

This, however, is an internet discussion forum, and not a thumb-twiddling emporium, so here we are.

I found this video interesting. If you are familiar with the background, you might skip to closer to the end.

I figured this discussion needed a YouTube video with red circles on pictures. That's how you can always tell the good ones.

March 17, 2018

Wow, Trump was SLAMMED on a TV show!

He was OBLITERATED on Twitter.

And then he got BLASTED on a blog.

But that guy who said that thing on TV was great! He was so smart at saying stuff. So was that lady. She’s brilliant and says smart stuff on TV a lot!

Can’t wait till Monday when it all happens again.

And, the best part, is that someone on Twitter said that there’s something big brewing AFTER Monday!

I think I know what it is. And if I’m right, then after Monday, there’s going to be TUESDAY! Hah, I’ll bet Trump isn’t even expecting that!

After Tuesday is over, he’s FINISHED. Until Wednesday at least.

March 15, 2018

FIU Bridge - What's missing from this picture

They put up the central span, and opened the street to traffic:



The completed bridge is supposed to look like this:



Genius.