Today brought a new development in the saga of the $130,000 hush money payment from President Donald Trump and his bumptious fixer Michael Cohen to Stephanie Clifford, better known as adult actress Stormy Daniels.

Here's the background: Clifford sued Donald Trump and Michael Cohen in Los Angeles, seeking to invalidate the hush-money agreement that purported to silence her about her relationship with Trump. She also sued Cohen for defamation, claiming he slandered her by suggesting she was lying about her affair with Trump. At first Michael Cohen was all swagger, seeking to move the case forward and compel Clifford to arbitrate the dispute. Then disaster struck: federal agents searched Cohen's home, office, and hotel room, seeking evidence including documents about the Clifford hush money deal. This left only one reasonable course of action, and for once, Cohen took it: he decided to assert his Fifth Amendment right to remain silent and to ask United States District Judge James Otero to freeze the Clifford case in Los Angeles while he did so. After a bitterly contested hearing that served to emphasize how much danger Cohen faces and how much everyone is undercutting their litigation stance by running their mouth on TV, Judge Otero granted the motion and stayed Clifford's Los Angeles case for 90 days. That past is prologue.

Today, Clifford — through her lawyer, the elusive and self-effacing Michael Avenatti — filed a motion asking Judge Otero to reconsider his decision and end the stay of Clifford's Los Angeles case, so that she could press forward with discovery seeking to invalidate the hush money agreement and prove Cohen defamed her.

Here's what you need to know about motions for reconsideration: judges (especially federal judges) hate them. Lawyers are hyper-competitive and hate losing and, given the freedom to do so, would re-litigate every dispute until doomsday. So there are rules strictly limiting when you can ask a judge to reconsider his or her decision. The rule in the Central District of California is typical — it requires the movant to show that significant new facts or new law have emerged since the decision, that the parties have discovered new facts or new law that they could not have reasonably discovered before the decision, or that there was a "manifest showing" that the judge didn't consider the facts before. The last one amounts to telling the judge "look again, dipshit," and I do not recommend it as a matter of regular advocacy.

Avenatti is very adept at using Team Trump's foibles against it. This motion is no exception. Avenatti isn't asking Judge Otero to lift the stay entirely — that is, he's not asking to go forward with questioning Cohen, thus forcing Cohen to choose between invoking his Fifth Amendment right to remain silent and defending himself in Clifford's case. He's only asking Judge Otero to modify the stay to let him seek discovery from the President of the United States.

To understand this move you have to remember the context pre-stay. Clifford filed the lawsuit against Trump and Cohen asking for declaratory relief — that is, a judicial declaration — that the hush-money agreement is unenforceable for a variety of reasons — because Trump didn't sign it, because silencing her would violate public policy, and so forth. (She added the defamation claim against Cohen later). Trump and Cohen, in turn, demanded that the Court send the case to private arbitration — that it enforce the hush money agreement between the President of the United States and a porn star by enforcing the part of the hush-money agreement that requires all disputes to be arbitrated privately. Avenatti, opposing that demand, asked the Court to allow him to take limited discovery about the formation of the hush money agreement, relying on law under the Federal Arbitration Act that allows limited discovery and a mini-trial to determine if an arbitration agreement ever existed at all. When the feds raided Cohen's office, that was the issue being briefed before Judge Otero — whether Michael Avenatti, on behalf of Clifford, would get limited discovery (including depositions) against Trump and Cohen to explore whether the hush money agreement and its arbitration clause were ever actually effective. Judge Otero ordered the 90-day stay of everything before he could rule on that request.

Avenatti's argument now is that Judge Otero should modify his stay and allow limited discovery — not against Cohen, which would trigger Cohen's need to take the Fifth, but against Trump. As he's done throughout this case, he's turned Trump's words — and the words of his meandering, talkative, and quite possibly sundowning mouthpiece Rudy Giuliani — against him. Avenatti cites Team Trump's recent promiscuous pronouncements about the case, pointing out that since Judge Otero entered the stay Trump and Giuliani have said repeatedly in multiple places at length (1) that the feds are looking into something having to do with Cohen's other businesses, not into the hush money agreement; (2) that Trump did in fact repay Cohen for the $130,000 hush money payment, and (3) that the repayment was legal and did not involve any campaign finance violations. Avenatti's argument based on these facts is this: Team Trump is saying openly that the it knows that the federal investigation of Cohen in New York has nothing to do with the Clifford hush money payment. Cohen's Fifth Amendment interests are therefore reduced. Moreover, this shows that Team Trump is perfectly able to answer questions about the hush money payment, and Judge Otero should therefore narrow the stay, keep it in place as to Cohen but lift it as to Team Trump, and let Avenatti move forward seeking discovery from Team Trump, thus moving the case along. Trump, Avenatti argues, has demonstrated through his public claims that he's perfectly able to defend himself in this case without Cohen:

Moreover, as shown above, Defendant Trump’s hands would not be tied in defending this action without Mr. Cohen’s testimony. Mr. Trump’s newfound voice on facts concerning this lawsuit demonstrates he will be able to testify in his defense. He will also have Mr. Giuliani available to testify for him in this case. Further, Mr. Trump may also make use of Mr. Cohen’s declarations.

Avenatti also points out that during the stay Trump has been trashing her on Twitter, calling her an extortionist and threatening to use the hush money agreement against her.

This is a clever move on many levels. It continues to use Team Trump's own words against them, and to publicize how their public positions and in-court arguments diverge. It continues to emphasize how Team Trump's story is meandering and contradictory. It continues to drive a wedge between Trump and Cohen. It continues to get Avenatti and Clifford free publicity and promote their narrative. It presumes quite confidently that Judge Otero was going to grant discovery of Trump in the first place, treating that as a resolved issue when it really isn't.

But will it the motion be granted? I think the chances are against it. Judges don't like motions for reconsideration and only grant them when the new evidence is truly ground-breaking. This isn't. Judge Otero already knew that Team Trump was verbally incontinent and offering inconsistent stories about the hush money agreement; that fact — the core notion that Team Trump acts like it knows the facts and doesn't need Cohen's testimony — was already priced into Judge Otero's prior decision. Cohen's interests are implicated even if the case against him moves forward without his participation; nobody wants their in-court interests represented by Team Trump. Indeed, the whole prior hearing was all about Cohen — Trump's lawyers never said a word other than their names. Moreover, Avenatti's argument is more serious than it is literal — Judge Otero knows there's a gulf between Trump and Giuliani mouthing off on TV and whether and how they can defend themselves in court. Avenatti knows that too.

Avenatti's motion is likely more performative than legal, more public relations strategy than sincere legal tactic. It will force the besieged Cohen to defend himself again, force Trump's lawyers to confront their client's entirely unregulated persona and the hapless outbursts of Rudy Giuliani, and generally remind everyone of what a mess this is, and the incredible nature of what Team Trump is admitting — The President of the United States somehow channeled money to repay his fixer for paying hush money to a porn star. The Era of Trump numbs us to explosive stories, and Avenatti's adept at finding ways to make us sit up and take notice again, and at driving media attention. Substantively, though, the motion is questionable. I think it is likely (never certain!) that Judge Otero will deny it, possibly without a hearing.

What a time to be alive.

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