On Tuesday, Daniels filed legal papers asking for a jury trial within 90 days of a judge’s order and the opportunity to depose President Trump and Michael Cohen, Trump’s personal attorney who acknowledged paying the adult-film star $130,000 less than two weeks before the 2016 election.
These followed Daniels’ state and federal lawsuits against Trump and Cohen for defamation and for a judgment to invalidate her nondisclosure agreement to keep quiet about her alleged affair with Trump. She claims that since Trump, under the alias ‘David Dennison,’ was a party to the agreement but never signed it, the contract was never valid. She claims that in recent months Cohen has tried to intimidate her into silence to protect Trump.
In court filings, Trump and Cohen said they intend to move this dispute out of the public eye and into a private arbitration proceeding as set out in their nondisclosure agreement. Cohen claims that Daniels has already violated a temporary restraining order issued by an arbitrator in February to remain silent about Trump when she and her attorney appeared on 60 Minutes and other media outlets.
U.S. District Court S. James Otero Thursday called Daniels request for depositions and a speedy trial “untimely” and “premature,” since Trump and Cohen have not had the required 21 days to respond to her complaint or to formally seek a move to arbitration. Judge Otero also noted that Daniels – in what appears to be a procedural mistake – has not yet filed a certificate with the court showing that they properly served defendants with their latest legal complaint.
In a tweet shortly after the court order was issued, Daniels’ attorney Michael Avenatti suggested that Thursday’s ruling does “not bode well for defendants” because the judge acknowledged that under some circumstances parties can go to trial to dispute the validity of an arbitration agreement.
Avenatti told ABC News that he plans to refile his motion for discovery and a jury trial, claiming that the judge denied their motion simply on “procedural grounds.” “I am highly confident that the court is going to order that President Trump and Mr. Cohen are going to sit for depositions and we're going to have a trial by jury as to whether there was an agreement or not in this case,” Avenatti said.
Judge Otero wrote in a footnote: “The parties are advised that the instant litigation is not the most important matter on the Court’s docket. Requests for expedited proceedings, hearings, and discovery not clearly supported by the record and law are discouraged.”
Michael Cohen’s attorney David Schwartz described today’s opinion as a victory for his side. “It didn't take the judge more than 24 hours to deny plaintiff's motion to depose Michael Cohen and President Donald Trump,” Schwartz told ABC News. “The Motion is denied without prejudice because it was premature. Only Avenatti would be happy about the decision. He said on CNN that the judge agreed with him on the law, but that couldn't be further from the truth,” Schwartz said.
Neil Wertlieb, an adjunct professor at UCLA School of Law who also serves as an expert witness in disputes involving contracts, business transactions, and attorney misconduct, called Thursday’s order “well-reasoned and not a surprise.” “At a minimum, the Court would need to hear from the adverse parties (Mr. Cohen and Mr. Trump) before making any decision on how to proceed,” Wertlieb said.
John Lauro, a former prosecutor and defense lawyer at The Lauro Law Firm said “this appears to be a very routine order where the court will take a close look to see if any or all of the claims will be sent to arbitration rather than to trial.”
Wertlieb points out that this case presents a Catch 22.
“Stormy Daniels is seeking in her lawsuit to have the Confidential Settlement Agreement declared void or unenforceable, while at the same time Mr. Trump’s attorney, Michael Cohen – and perhaps Mr. Trump himself – is seeking to penalize Ms. Daniels in arbitration for violating that same agreement. Unless and until the federal court declares the agreement void, it’s possible, and perhaps likely, that their dispute will proceed along these two inconsistent paths.”