Uh oh: Daniels lawyer claims Michael Cohen intends to plead the Fifth in defamation suit

Lay aside how awful it looks for the president’s lawyer, whose office was raided by the FBI a few days ago, to suddenly invoke his right not to incriminate himself in a related civil lawsuit. Whether or not one should draw an inference as to guilt or innocence from him doing that, the hard fact remains that many people will.

Think about this strategically. Right now Cohen is facing a criminal probe by the Manhattan U.S. Attorney *and* a civil suit filed by Daniels herself alleging that the hush-money contract is unenforceable and that Cohen defamed her by calling her a liar in her allegations of an affair with Trump. Michael Avenatti, Daniels’s lawyer, has naturally sought to compel discovery as part of that suit. He wants to know what Trump said to Cohen about Daniels, whether Cohen possesses evidence of their relationship, whether the president knew of the deal Cohen agreed to with Daniels in 2016, etc etc. If Cohen coughs that up, though, the material he produces could be used by the feds for their criminal campaign-finance case against him. So what he’s going to do, according to what his lawyer allegedly told Avenatti, is seek an emergency stay of the defamation suit until the criminal matter is resolved. And if that stay isn’t granted, then he’s going to “take Five” to prevent him from being compelled to turn over evidence.

What does that add up to? Bad things, per litigator Ken White:

Unless the judge grants the stay, in other words, Daniels may win her suit because Cohen has no choice but to stay silent and protect himself from criminal liability instead. Whether you or I should draw an inference of culpability from his silence, the jury in her civil suit would be allowed to do so:

If Cohen loses on his motion to stay, I wonder if he’ll offer Avenatti a deal in which he agrees to drop his contract claim against her if she agrees to drop the defamation claim. That would leave her free to say whatever she wants about Trump, which it sounds like she’s planning to do anyway. Her gossiping about POTUS and their affair, which apparently consisted of exactly one sexual encounter, can’t damage Trump any more than this sordid legal spectacle is doing.

But that comes with risks. *If* there are other women out there under NDAs, they’re going to run to Avenatti and other lawyers demanding to be freed from their own contracts with Cohen. They have him over a barrel now. If Daniels wins, there’s no reason why they can’t win too. The other risk is that Avenatti has hinted that Daniels has something on a DVD that Cohen and Trump might not want revealed. If that’s true, then Cohen dismissing his lawsuit against her as a part of a deal would leave her free to publish whatever’s on that disc. There’s a reason he sued to enforce her silence in the first place. We may get to find out what it is.

Yesterday Cohen allegedly told Donny Deutsch that he’d rather jump out of a building than turn on Trump. We’ll see.