Michael Avenatti to court: Michael Cohen “has presented no evidence” that I received or distributed SAR info
Curiously worded non-denial could lead court to compel Avenatti to disclose what info he received and distributed regarding Cohen.
Michael Avenatti has been described by the NY Times at the “ringmaster” in the Michael Cohen circus.
The fight going on in the SDNY over Avenatti’s request for permission to appear in the case certainly is turning into a circus, with the Judge likely to stop the show early next week.
For background on the case and the role Avenatti is playing, see these prior posts:
- Court appoints Special Master to screen Michael Cohen files seized by Feds
- Michael Cohen lawyers ask court to require Michael Avenatti to reveal source of bank records (Updated)
- Stormy Daniels court filing: Michael Cohen trying “to soil Mr. Avenatti” (Updated)
The short version is that Cohen’s lawyers and Avenatti are in a pissing match over whether and to what extent Avenatti can be trusted in a case in which Cohen seeks to preserve the confidentiality of the records the feds seized from his law office and home. The argument is that Avenatti’s past conduct in revealing bank information regarding Cohen renders Avenatti unfit for special admission to the court, even though in most cases such special admissions are routine. Avenatti argues that Cohen is just flinging mud, and the normal procedures should be filed.
The court ordered Cohen’s lawyers to file a supplemental memo of law with legal authorities for excluding Avenatti, and on Friday, May 18, Cohen’s lawyers filed that Memo of Law (pdf.) full embed at bottom of post.
The argument by Cohen’s lawyers is summarized as follows:
We represent plaintiff Michael D. Cohen (“Mr. Cohen”) in the above-referenced matter. We write in response to the Court’s order, dated May 16, 2018, permitting Mr. Cohen to respond to Mr. Avenatti’s letter and motion for admission pro hac vice. ECF 50. Mr. Avenatti’s motion should be denied. While we recognize that pro hac vice motions are routinely granted, this is an exceptional case, and Mr. Avenatti’s actions warrant a denial, particularly given his tangential relationship to this case. Mr. Avenatti appears to have violated the Local Rules of this Court, as well as the ethical rules applicable to lawyers practicing in this District.
* * *
As noted in our opening brief, on May 8, 2018, Mr. Avenatti published inaccurate statements regarding Mr. Cohen. Second, Mr. Avenatti also published, at the same time, factually accurate information regarding Mr. Cohen’s banking transactions that had no lawful source, and we requested that the Court inquire as to how he obtained the information. Third, Mr. Avenatti made further inaccurate statements to the public, all with the purpose of prejudicing Mr. Cohen in the proceedings in which Mr. Avenatti now seeks admission….
* * *
Since the submission of our letter on May 9, seemingly authoritative press accounts have also detailed that a federal law enforcement official apparently intentionally disclosed to Mr. Avenatti directly or indirectly certain suspicious activity reports (SARs) reports regarding Mr. Cohen.
While not every press report is credible or without error, the New Yorker story published by Ronan Farrow on May 16, 2018, quoted the law enforcement official who disclosed the information as being “terrified” about the legal consequences to him for the intentional act of disclosure. The law enforcement official is quoted as follows: “To say I am terrified right now would be an understatement.” Ronan Farrow, Missing Files Motivated the Leak of Michael Cohen’s Financial Records, New Yorker (May 16, 2018), available at https://www.newyorker.com/news/news-desk/missing-files-motivated-the-leak-of-michaelcohens-
financial-records. There is virtually no question that any government official who leaked the information did so with the knowledge that such action was illegal. Despite the unlawful method of disclosure, Mr. Avenatti was the person who published the confidential nonpublic information. See Anderson Cooper 360°, Michael Avenatti Full Interview With Anderson Cooper, YouTube (May 8, 2018), available at https://www.youtube.com/watch?v=38qntQ0NJQ0.
As we demonstrate in this letter, the rules of this Court and professional responsibility requirements governing attorneys in New York suggest that Mr. Avenatti should not be admitted by this Court pro hac vice….
On the issue of the banking records, however, Avenatti plays it cute — he doesn’t deny getting and distributing the records, he just says Cohen hasn’t proven it (emphasis added):
7. Mr. Cohen has presented no evidence that I received any information from the whistleblower identified in the New Yorker article referenced by Mr. Cohen (which is also not competent evidence). There is also no evidence that any of my actions caused the whistleblower to feel “terrified.” In fact, the article suggests the exact opposite.
8. Mr. Cohen has presented no evidence that I ever had access to any suspicious activity reports relating to Mr. Cohen.
9. Mr. Cohen has presented no evidence that I ever purposely released any information contained within any suspicious activity report related to Mr. Cohen.
The “Mr. Cohen has presented no evidence” verbiage could backfire on Avenatti because it’s not a denial. Who Avenatti received information from and what he did with it are within Avenatti’s knowledge, not Cohen’s. Indeed, the whole point of Cohen’s motion is to have the court force Avenatti to reveal that information.
If I were the judge, the non-denial by Avenatti raises a red flag that might, in itself, lead the court to require Avenatti to take a position on what he did or didn’t do.
If it turns out that Avenatti did in fact receive banking records from the whistelblower, have access to suspicious activity reports, or release such information, then Avenatti’s carefully worded non-denial may be interpreted as an attempt to mislead the court.
Expect a ruling from the Judge early next week.
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