(CN) – A federal judge on Friday told President Donald Trump’s personal attorney that he must declare in writing that his Fifth Amendment right against self-incrimination will be compromised unless there’s a delay in a lawsuit filed by adult film star Stormy Daniels.
U.S. District Judge S. James Otero said at a hearing in Los Angeles Friday morning that it is not enough for Michael Cohen’s attorney to file a statement on his client’s behalf and he gave Cohen until next Wednesday, April 25.
Brent Blakely, representing Cohen and Essential Consultants, an LLC Cohen established to pay Daniels $130,000 days before the 2016 presidential election, asked Otero for a three-month stay in the case during to purported overlap with an ongoing federal criminal investigation of Cohen in New York.
“We’re asking for a pause button, a modest stay,” Blakely said.
FBI agents raided Cohen’s office and residence on April 9, seeking records about the payment to Daniels and the nondisclosure agreement stemming from her claim of having a brief affair with Trump in the early 2000s.
Blakely said because the allegations in Daniels’ lawsuits overlap with the criminal investigation, Cohen’s civil rights “may be adversely affected if this case proceeds.”
Judge Otero agreed that has the discretion to stay the case if he concludes Cohen’s Fifth Amendment rights are imperiled, but he went on to say he hasn’t seen the warrant served by FBI agents and doesn’t know “what the scope and breadth of the investigation is.
Daniels’ attorney, Michael Avenatti, who objected to the requested delay, said he understood the judge’s uncertainty, acknowledging that “we’re in a room of darkness and the folks with the matches don’t want to strike them.”
“The party with the matches is the government,” Otero said, who added that expects a federal indictment to handed down in the coming months.
With that Avenatti pressed on, arguing that Otero should not grant a stay because opposing attorneys can’t prove the “large degree of overlap” with the federal investigation needed to justify a stay.
The federal investigation could drag on for months or years, Avenatti said, and if Cohen’s assets are seized, Daniels, whose given name is Stephanie Clifford, could be left out in the cold with Cohen unable to pay damages to her.
Daniels claims she had an affair with Trump in 2006 and was paid $130,000 by Cohen to keep quiet about it.
Cohen’s attorneys have accused Daniels of violating the confidentiality clauses more than 20 times and said she could be liable for $1 million in damages for each violation.
Daniels wants Otero to nullify the nondisclosure agreement so she can “set the record straight.” In the meantime, Trump and the White House deny the affair ever took place.
Avenatti argues the agreement is not legally valid because it was only signed by his client and Cohen, not by Trump.
Cohen, who has denied there was ever an affair, said he paid the money out of his pocket using a home equity loan. He has said neither the Trump Organization nor the Trump campaign was a party to the transaction with Daniels and he was not reimbursed for the payment.
But at Friday’s hearing, Otero indicated he felt Cohen and his attorneys weren’t being specific enough in explaining what they wanted and why — and why they hadn’t already filed a declaration.
“There are gaping holes here,” he said.
Avenatti called Cohen’s choice not to immediately file a declaration “a strategic choice, not a mistake.”
But Blakely was undeterred, arguing that the requested stay is necessary because investigators “took everything,” including phones, computers and Cohen’s personal communications with his attorneys from his office, and “they still have it.”
Avenatti maintained that Blakely should still possess copies of his communications with his client because his office was not raided by the FBI.
He also said that U.S. District Judge Kimba Wood has said prosecutors in New York will be allowed to search the seized documents to determine which fall within the scope of their investigation, and that “all documents are to be returned to Mr. Cohen in the next two weeks.”
On Friday, Otero said he will explore “less drastic measures other than a stay” in order to allow the case to run parallel to the federal investigation.
Blakely said if Otero denied the stay and Avenatti’s motion for discovery goes forward, Cohen’s deposition would be futile since he could assert his Fifth Amendment right on every question.
Avenatti said he would be happy to accept the “negative inference” from the court if Cohen did so.
Speaking with reporters afterwards, Avenatti said he was pleased with the outcome of the hearing.
“It’s about what the President knew and when he knew it,” he said. “It’s critically important to our entire belief in democracy and an open and fair judicial process.”
Avenatti also said it was “clear to me Michael Cohen and the president do not want to publicly state” that Cohen intends to invoke the Fifth Amendment.
Before departing, Avenatti announced he plans to file a separate defamation claim against Trump for his “defamatory, outrageous statements” Wednesday criticizing the release of a sketch of a man Daniels said her in Las Vegas in 2011 after she began sharing details about her affair with Trump.
“A sketch years later about a nonexistent man,” Trump said on Twitter. “A total con job, playing the Fake News Media for fools, but they know it!”
Trump also tweeted a photo of Daniels with an ex-boyfriend, who bears a striking resemblance to the sketch Daniels and her attorney released Tuesday.
Avenatti said he looks forward to “placing Trump under oath and asking him for the basis of those outrageous, outlandish statements.”
Daniels has already amended her original complaint to slap Cohen with defamation charges after he allegedly accused Daniels of lying about the alleged affair and claims of being threatened.
Daniels claims Cohen’s statements in February exposed her to ridicule and threats.
Otero said he will consider whether the defamation charges can be “severed” from the original request to nullify the nondisclosure contract or if both complaints can run parallel in the case.
He also told Blakely any stay would be “subject to immediate appellate review.”