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

In 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.