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Tue May 29, 2018, 05:33 PM


Cohen warrant case hearing tomorrow and Avenatti agenda [View all]

It's been a while since I posted a docket update in the matter of the search warrants executed at Michael Cohen's office and residences, so some of this is old news. But as long as Mr. Avenatti is now threatening to sue the US attorneys on the case, it is worth mentioning the various filings this case has attracted since my last review of the docket here: https://upload.democraticunderground.com/100210630928

If you saw It's a Mad, Mad, Mad, Mad, Mad World, there is a scene where people are arriving at the park in Santa Rosita looking for the "Big W", but they notice there are all sorts of other people who have come out of the woodwork to look for it too. That's been the background level of "odd things that have floated onto the docket" in this case.

This one by Gregory and Janis Kaighn is an instant classic gem of the "pro se filer" category which courts adore and love. In this letter to the court, the Kaighns request that the court issue them an arrest warrant by which they can take Mr. Cohen and presumably Trump, into custody on their own:


The Kaighns are asking the court to issue arrest warrants because, well, they've been busy in various courts:


The Kaighns filed the complaint on September 19, 2016. Compl. The complaint alleges (1) "the Illuminati" are a Communist organization within the meaning of the Communist Control Act of 1954 ("the Act" )
, 50 U.S.C. § 841, id. ¶ 12; and (2) Trump is a member of "the Illuminati" and hence a Communist under the Act, id. ¶ 16. The Kaighns seek a declaration that Trump is a member of the Communist Party and therefore forfeits all "rights, privileges, and immunities." Id. ¶¶ 21-22. The Kaighns further seek preliminary and permanent injunctions barring Trump from becoming President of the United States. Id. ¶ 20.


Plaintiffs filed the complaint on September 6, 2016, alleging that the duly-elected government of the United States has been overthrown by the "Roosevelt Dictatorship" with the assistance of the British Monarchy, the Rothschild Central Bankers, and the Illuminati. See generally Compl. Plaintiffs asserted "[t]he entire United States government has gone completely dark" and, accordingly, sought rescission of the United States Constitution, a Constitutional Convention, a declaration that a list of federal statutes are unconstitutional, the imposition of a constructive trust over the United States, and the appointment of a receiver "to take custody, manage, and protect the assets of the United States, the federal government and the Federal Reserve for the benefit of the American people." Id. ¶¶ 83, 105-108.

Interestingly enough, Mr. Kaighn is an attorney, duly admitted in California:


ORDER signed by District Judge Kimberly J. Mueller on 4/11/2017 DECLARING Gregory Kaighn a vexatious litigant. ORDERING Gregory Kaighn shall not initiate any further action as a self-represented plaintiff in this court unless the pleadings initiating the action, which must be submitted in hard copy, are accompanied by a declaration under penalty of perjury that explains why Mr. Kaighn believes he has meritorious claims. A copy of this order shall be attached to any application. The Clerk shall not accept any action submitted by Mr. Kaighn as a self-represented plaintiff unless it is accompanied by the required declaration and copy of the instant order; any incomplete filings shall be returned to Mr. Kaighn without further action of the court. If Mr. Kaighn submits an action as a self-represented plaintiff accompanied by the required declaration, the Clerk shall open the matter as a miscellaneous case to be considered by the General Duty Judge of this court. The court SUSPENDS Mr. Kaighn from practice before this court for a minimum of sixty days, with the requirement that thereafter he submit a prereinstatement declaration, which must be accepted by the court before reinstatement, explaining his understanding of the reasons for his suspension and the steps he will follow to cure those reasons. The court INSTRUCTS the Clerk of the Court provide a copy of this Order to the state Judicial Council. The court INSTRUCTS the Clerk of the Court to refer this matter to the appropriate disciplinary body of the California State Bar.

The Kaighns are one of several parties which has attempted to somehow insinuate themselves into this proceeding, which is primarily about which documents seized in the raids will be provided to the investigators of the USAO-SDNY.

In my previous summary, I had mentioned the curious figure of Mr. Peter Gleason, a NY attorney, who had filed some weird stuff about two women beaten up by Schneiderman under circumstances where it was preferable that they not go to the police. Mr. Gleason was defending a prostitution operation at the time, and various folks have been able to do the math on that one.

Mr. Gleason's intervention was denied, as he did not explain how any privilege would attach to correspondence between him and Cohen on that matter.

ORDER as to In the Matter of Search Warrants Executed on April 9, 2018. Mr. Gleason has moved for a protective order over purportedly privileged information that Mr. Gleason states he has disclosed to Mr. Cohen "in furtherance of [Mr. Gleason J's role as an attorney investigating a potential claim and or representing clients." (ECF No. 51, at 5-6.) Mr. Gleason appears to be arguing that the "common interest" exception to waiver of the attorney-client privilege should apply to those disclosures. However, Mr. Gleason's submission does not allege facts that meet the test for a finding of "common interest," which requires that the parties and their respective counsel have decided upon and undertaken a "joint defense effort or strategy." See Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015). Accordingly, Mr. Gleason's motion is DENIED. SO ORDERED. (Signed by Judge Kimba M. Wood on 5/24/2018)(ft) (Entered: 05/24/2018)

It was an interesting ruling to which the media and blogger paid no mind, which is sort of surprising, since Gleason's reason for wanting to be in on the document production is very much like that of Avenatti's.

In my last update (linked above) I noted that, as long as the special master was continuing to review the materials, the parties had little to fight over other than "why is Michael Avenatti here?"

Avenatti has no actual role in the case. He had originally filed for intervenor status for Daniels on the proposition that Cohen may, or may not, possess correspondence relevant to the California litigation in which Daniels is seeking to have the hush contract rescinded.

At the request of the US Attorneys, and Mr. Avenatti's consent, he consented to have his motion to intervene "held in abeyance" - i.e. not acted on by the court. Given that consent, it has been something of a curious spectacle that he and Cohen's attorneys have engaged in over his motion for pro hac vice admission. Since he has no active motion, there is not any point in admitting him to the proceeding.

Just to be clear, the US Attorneys filed a separate letter when asked about Avenatti's pro hac admission:


Government respectfully submits this letter in response to the Court’s order, dated May 21, 2018. The Government has conferred again with counsel for proposed Intervenor Stephanie Clifford and, at this time, with the consent of counsel for Ms. Clifford, the Government requests that her motion to intervene continue to be held in abeyance. After further conferring with counsel for Ms. Clifford, the Government will provide an update to the Court on or before June 1, 2018, advising whether there is a need for the Court to consider the motion.

The Government takes no position on Mr. Avenatti’s motion to appear pro hac vice.

The last sentence is somewhat gratuitous since the US attorneys do not want Avenatti to be granted intervenor status, so whether he's admitted on the only motion he's filed is somewhat academic.

But, not actually being admitted to the court or having an actual iron in the fire is not enough to hold him back, as this curious letter received not a whole lot of attention when Avenatti filed it:


We write to bring an important matter to the Court’s attention.

We have reason to believe that plaintiff Michael Cohen, or members of his team, have begun to leak select audio recordings to the media that were seized in the FBI raids. We further have reason to believe that these recordings may relate to our client, Ms. Stephanie Clifford. We think that these select leaks are meant to paint a false narrative relating to Mr. Cohen and his business dealings at the same time he is not disclosing numerous other recordings of him speaking with individuals such as Mr. Trump.

We respectfully request that the Court make inquiry of Mr. Cohen’s attorneys of these leaks at Thursday’s hearing, including, among other things, whether Mr. Cohen’s team is the source of the leaks, what was disclosed, and the reasons for the disclosures. Such leaks would plainly call into question the seriousness of Mr. Cohen’s arguments opposing my pro hac vice motion. They may also directly interfere with the privilege review being conducted by the Special Master. Further, if the materials publicly disclosed relate to our client, the disclosures would also have relevance to our motion to intervene.

So, try to figure that one out. Avenatti claims Cohen is leaking materials that were "seized in the FBI raids" - i.e. materials that belonged to Cohen in the first place since anything "seized in the FBI raids" was his stuff. But the spectacle of an attorney with no actual role in the proceeding asking the judge to interrogate a soon-to-be criminal defendant on the basis of "we heard a rumor" is pretty outstanding. At the end of the day, if Cohen wants to disclose his own documents and recordings to the media in order to "paint a false narrative" or, for that matter paint a picture of poker-playing dogs, that's pretty much Cohen's prerogative. But Avenatti's letter suggests that Cohen has some kind of duty to keep things about Daniels secret - as if there were some sort of contract to that effect, I suppose.

So, Judge Wood had asked the parties for an update on whatever it is they want to discuss during the upcoming hearing, and the USAO-SDNY prepared the joint submission for everyone:


As directed by Order dated May 22, 2018, the Government respectfully submits this letter—jointly with counsel for Michael Cohen, the Intervenors, and Stephanie Clifford—setting forth a proposed agenda for the conference on May 30, 2018. The parties request that the Court address the following at the conference:

An update on the Government’s production of the material seized pursuant to search
warrant on April 9, 2018 to Cohen and the Special Master (the “Material”).

An update on Cohen’s production of portions of the Material to the Intervenors.

An update on the release of non-privileged portions of the Material to the Government by the Special Master.

Clifford’s counsel asks that the Court address his pending pro hac vicemotion; Cohen asks that this motion be held in abeyance to the extent that Clifford’s motion to intervene is also in abeyance.

Clifford’s counsel asks that the Court address his letter to the Court dated May 22, 2018 relating to alleged leaks of audio recordings by Mr.Cohen or members of his team.

And of course, on the eve of the hearing, this came in today from the Cohen camp concerning Avenatti's candor and fitness for the discretionary power that the court exercises over pro hac vice admission:


Dear Judge Wood:

We represent plaintiff Michael D. Cohen (“Mr. Cohen”) in the above-referenced matter. We write regarding Mr. Avenatti’s letter and motion for admission pro hac vice. We submittedto the Court a letter on May 9 (ECF 41) and a memorandum of law on May 18 (EC 53) opposing Mr. Avenatti’s application for pro hac vice admission in this case. We have previously provided the Court with various reasons why pro hac vice admission is inappropriate for Mr. Avenatti given the circumstances of his conduct in this matter.

We write to bring to the Court’s attention a recent decision by the U.S. Bankruptcy Court for the Central District of California regarding conduct by Mr. Avenatti and his law firm, Eagan Avenatti LLP, which led the Bankruptcy Court to impose a $10 Million judgment against Mr. Avenatti’s law firm last week. See In re Eagan Avenatti, LLP, No. 8:17-bk-11961-CB (C.D. Cal. May 22, 2018), ECF 445. This judgment occurred after Mr. Cohen’s pro hac vice response was filed with the Court. We attach the following: Exhibit A - the Bankruptcy Court’s Order;Exhibit B - the Complaint from that proceeding; and Exhibit C - a May 25, 2018 New York Law Journal article regarding the conduct of Mr. Avenatti’s law firm in relation to that proceeding.

The Bankruptcy Court reviewed a record that included an arbitration panel order that found Mr. Avenatti’s firm “acted with malice, oppression and fraud . . . .” See Exhibit B, Jason Frank Law, PLC v. Michael J. Avenatti, No. BC 706555, at Ex. 2 (Cal. Sup. Ct. May 16, 2018) (attaching as Exhibit 2, Jason Frank Law, PLC v. Eagan Avenatti, LLP, JAMS Ref. No. 1220053114 (2017) (Friedman, Arb.)). The Honorable Karen S. Jennemann, a Federal Bankruptcy Judge in the Middle District of Florida, also stated on the record that a filing in the case had “a stench of impropriety . . . .” Id. at Ex. 4 (Transcript of Proceedings held on March 8, 2017, In re Eagan Avenatti, LLP, No. 6:17-bk-01329-KSJ (March 8, 2017), ECF 157-1, at 22:12-13; 23: 9-17.).

We believe the attached court documents amplify our opposition to Mr. Avenatti’s motion to be admitted pro hac vice. We have also attached a tweet published by Mr. Avenatti on May 18, shortly after we filed Mr. Cohen’s brief with the Court, regarding one of the undersigned lawyers and the law firm representing Mr. Cohen. Exhibit D, Michael Avenatti, Twitter (May 18, 2018, 5:38 PM).

We did not respond to the numerous media requests that resulted.

The nice thing about court filings is that while the New York Law Journal puts most of its content behind a paywall, the article in question can now be read here:


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Reply Cohen warrant case hearing tomorrow and Avenatti agenda [View all]
jberryhill May 2018 OP
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triron May 2018 #4
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Laura PourMeADrink May 2018 #8