The Designated Defendant: Federal Judge Refers To Indictment Of Michael Cohen As “Likely”

Angeklagter-vor-GerichtIn criminal law, defense attorneys occasionally refer to a poor sap in a corporation as the “designated defendant” — the guy who by design will take the fall for the company after signing reports or submitting false statements.  For Michael Cohen, his possible indictment is not by design but his own hand — a notoriously poor lawyer with reckless inclinations.  However, according to federal judge S. James Otero of United States District Court in Los Angeles, Cohen appears to be the designated defendant for the Southern District of New York’s U.S. Attorney’s Office. In staying the proceedings in California started by counsel for former porn star Stormy Daniels, Otero has referred to the indictment of Cohen as “likely.”  It is a view shared by many in the criminal law field, but it must be chilling when it comes from a federal judge.

Otero ordered a three-month delay in the lawsuit brought by Michael Avenatti, counsel to Stephanie Clifford (AKA Stormy Daniels).  It was not unexpected.  Judges in civil cases will often yield to criminal proceedings in scheduling so not to undermine either the rights of the accused or hinder the criminal proceedings.  Cohen previously invoked his Fifth Amendment rights in the case and cited the New York criminal investigation.

In granting the 90 day stay, Otero found that “there is a large potential factual overlap between the civil and criminal proceedings that would heavily implicate Mr. Cohen’s Fifth Amendment rights.”

While Otero agreed with Avenatti that Cohen’s argument for delay was made weaker without an indictment being filed against him, “the significance of the FBI raid can’t be understated.”

However, there was one line that jumped out from the order: “This is no simple criminal investigation. It is an investigation into the personal attorney of a sitting president regarding documents that might be subject to the attorney-client privilege. Whether or not an indictment is forthcoming, and the court thinks it likely based on these facts alone, these unique circumstances counsel in favor of stay.”

For a man who boasted that he would get $20 million from Daniels and use it to take a vacation, Otero’s observation must be something of a buzz kill.  Cohen was clearly expected Club Med not Club Fed.

For his part, Avenatti (who has been running circles around Cohen) has pledged to appeal the stay to the United States Court of Appeals for the Ninth Circuit.

13 thoughts on “The Designated Defendant: Federal Judge Refers To Indictment Of Michael Cohen As “Likely”

  1. Did you write, “…Indictment Of Michael Cohen..,” the President’s lawyer?
    _________________________________________________________

    Article II, Section 2

    “The President shall…have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

  2. From a NDA contracts standpoint, I only see one tiny technical flaw in Mr. Cohen’s work, and that was, once he decided that Trump did not have any performance items in the NDA, and therefore could be omitted as a signatory, he should have taken 2 minutes to delete the blank signature line put in there for Trump. That was sloppy, but he can argue it as an oversight in doc prep. It doesn’t change Ms. Cliffords performance obligations after receiving the $130K.

  3. The fact that Cohen is behind the eight ball in two courts and according to some, is a mediocre attorney at best, this makes me think he will “sing for his supper” in the 2nd District, to avoid a potentially large Club Fed vacation.

    So were does that leave Avanatti and his suit? Will he urge the court to make this case short and sweet and file a motion for judgement. or will he accept a generous settlement? Cohen to my knowledge, has not (formerly) given up on the Stormy Daniel NDA, as in doing so, would make the defamation case against him seem much more attainable. Either way Avanatti is leveraging the 2nd District case against Cohen for his client.

    For those who do not know, Avanatti was a student of Jonathan Turley and, of course, fast becoming the attorney du jour on TV

  4. For Michael Cohen, his possible indictment is not by design but his own hand — a notoriously poor lawyer with reckless inclinations.

    Do you practice law in New York, professor Turley? Do you have any experience with workaday legal practice anywhere?

  5. Is this anything like there is a possibility of the Steele Dossier being factual? Cohen probably doesn’t have a chance in the Ninth Circus given the liberal make up of the judges, but he might lose higher up.

    • The alternative to the 90-day stay was Cohen formally asserting his Fifth Amendment right against self-incrimination on the record rather than publically stating that he intended to do so. Judge Otero’s statement that an SDNY indictment against Cohen is “likely” was probably based upon Cohen’s public statement that he intended to invoke his Fifth Amendment right in Stormy Daniel’s lawsuit against Cohen. That Judge Otero’s statement triggered Turley’s conditioned reflex to salivate, or worse, to drool, if not also to foam at the mouth, is no more surprising than the Judge’s 90-day stay order.

  6. Otero was, as I recall, a Superior Court judge, who got elevated to the Appellate Court in California. He dropped that bench to become a lifetime appointee to the Federal bench. He is a conservative hard ass jurist. Cohen is going to lose with him whether he loses in SDNY or not.

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