Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York and is Of Counsel at Pierce Bainbridge. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime Network, providing live legal analysis on high profile court cases. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own.
Michael Avenatti, the relentlessly media-savvy attorney for the pornographic film director and actress Stephanie Clifford (aka Stormy Daniels), wasn’t his usual ebullient self Wednesday morning at Manhattan’s Daniel Patrick Moynihan United States Courthouse.
Representing Clifford as an “interested party” in the federal matter pertaining to the search warrants executed in April on the home, office and hotel room of Donald Trump’s personal lawyer, Michael Cohen, Avenatti couldn’t find a seat at the table – literally or figuratively.
Lawyers for the other represented parties (Cohen, President Donald Trump and the Trump Organization) wouldn’t make room for Avenatti at counsel’s table, and so Avenatti made due by pulling up a chair at the end of the back table, cater-corner to Ellen Beth Resnick, a lawyer for the Trump Organization.
He also didn’t have a microphone, so he had to get up and walk across the courtroom to stand at the podium any time he wanted to address Judge Kimba M. Wood, the federal district court judge presiding over the matter.
Avenatti’s purported objective has been to represent Clifford as a formal, intervening party in Cohen’s case, the entirety of which has very little to do with his client.
Avenatti has been adamant in court filings that his fight to represent Clifford, and thus to be admitted to practice law in the Southern District of New York on a pro hac vice basis (“for this occasion only”), stems from his duty to protect her interests in any records – including any audio recordings between Cohen and Clifford’s former attorney Keith Davidson – that may have been swept up in the FBI raids of Cohen’s premises.
On Twitter, Avenatti has dubbed these possible recordings the “#TrumpTapes,” although there was absolutely no indication made by any party at the hearing that Trump was – or was even possibly – on those recordings.
Unfortunately for Clifford, this may be where Avenatti’s winning streak comes to an end.
Until this point, Avenatti has been pursuing a dual pronged approach: duking out multiple legal issues, both in the various legal courts in which he has filed cases (or in this instance, in a case in which he would like to formally represent a party), and in the court of public opinion. He has been making multiple cable news appearances, sometimes several times a day on several different networks, arguing for his client. He even pressed his case in an appearance on Stephen Colbert’s “The Late Show.”
He is now at a crossroads, and he may have to forgo at least one courtroom battle. Wood was nonplussed by Avenatti’s colorful and impassioned rhetoric, which included his assertion that he has been “an exemplary member of the bar for 18 years” with an “exceptional track record.”
At the end of one of Avenatti’s soliloquies, Wood noted that he has “no standing to make these points,” and that “until you are admitted here, I don’t expect you to stand and be heard.” That’s basically lawyer speak for “you have no right to be here.”
In keeping with their stance in court filings, Cohen’s attorney, Stephen Ryan, on Wednesday vehemently opposed Avenatti’s request to join the case, citing Avenatti’s release of confidential bank records to the media. “I’ve never seen an attorney conduct himself in the way he has,” Ryan said, and called Avenatti’s behavior reckless.
Matching Avenatti’s flare for the dramatic, Ryan noted that he’s never opposed a motion of this nature in his 37 years of practice, but he did so on Wednesday because of Avenatti’s “intentional, malicious, and prejudicial release of information” which amounted to a “drive-by shooting” of his client.
Taking these and other matters into consideration, Wood calmly warned Avenatti that if he were to be admitted in this matter, “You’d have to stop doing some of the things you’ve been doing.” On the other hand, she noted, if he is not formally allowed to intervene in this case, she can’t stop him from continuing his “publicity tour.” It seems this warning struck a chord with Avenatti.
Immediately after the conference, Avenatti withdrew his pro hac vice motion, stating he would refile his application at a later date if necessary. After the conference, he proceeded directly to the microphone podium outside the courthouse to make a short statement, as has been his signature practice (none of the other attorneys stopped for comment), and to introduce his “Trump Tapes” designation for media consumption.
So, it seems Avenatti has chosen to continue his media blitz, rather than pursue an actual seat at the table before Wood; we will no doubt be hearing from Avenatti on a cable news broadcast imminently, but we won’t be hearing from him again anytime soon in Wood’s courtroom.