Why Trump Should Fear Michael Avenatti More Than Bob Mueller

 In Politics

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AP Photo

Quick: What’s the basis of the civil lawsuit that high-profile attorney Michael Avenatti is pursuing on behalf of adult film actress Stormy Daniels?

It might take you more than a few seconds to recall that the suit is based on an agreement that Daniels signed shortly before the 2016 election, promising not to disclose her (alleged) sexual relationship with Donald Trump. She’s asking a California trial judge to declare that the agreement isn’t enforceable against her because Trump (or his pseudonym, David Dennison) never signed the document, and because it’s void for public policy reasons, too. Avenatti has been racing from one microphone and news camera to another, blaring damning information about Trump’s sometime attorney, Michael Cohen (and, by implication, the president himself). The suit, and Avenatti’s aggressive TV lawyering, has rattled Trump’s legal team, provoking Rudy Giuliani into a series of damaging admissions—including the revelation that Trump did indeed reimburse Cohen for his $130,000 payoff to Daniels.

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Avenatti has boasted openly about his strategy, goading the 73-year-old former New York mayor at every opportunity as “out to pasture,” “tired” and “dazed and confused” and challenging him to a one-on-one debate on the case. “Not all cases are the same nor is the winning strategy,” he recently tweeted. “Here, the constant media/PR pressure has forced Trump, Cohen, et al. to make a series of huge errors and to make damaging admissions helpful to our case. This was not by accident.”

It’s undeniable that Avenatti has had an impact, but it’s also fair to say that some of the matters he’s been discussing—about clandestine meetings between Trump campaign operatives and Russian oligarchs, and about corporate contributions to the Cohen-created LLC, Essential Consultants—seem only dimly related to the underlying suit, and to the client on whose behalf Avenatti is supposed to be working.

Daniels says she’s OK with how her attorney is proceeding, but it’s worth asking: What’s going on here? How does any of this help her? The stakes would be high were that focus lost: If Daniels is found to have breached her contract, the agreement provides that she’ll be on the hook for a million dollars (in addition to the $130,000 settlement she’d then have to pay back).

But perhaps Avenatti is onto something, thanks to a fundamental fact about private civil litigation against high-profile defendants: Although these suits are primarily about this plaintiff against this defendant, they often have powerful secondary effects that take them into realms usually associated with policy, politics, and even public health and safety. Institutional actors as diverse as the tobacco companies and the Catholic Church might have continued their sheltering and denying ways but for the dogged persistence of private litigants. In the Daniels case (or, more accurately, cases, since there is now also a defamation claim against Trump for accusing Daniels of lying about a threat against her in connection with the alleged affair), the public has so far gotten more information, and more quickly, than anything a sclerotic and polarized Congress has managed to unearth about the supposed Trump-Russia campaign. Special counsel Robert Mueller’s investigation might also run into political shoals, but there’s plenty on the table already, thanks to the Daniels suit. Why?

The answer is that the production of information damaging to powerful political and corporate interests is consistently compromised by government’s inability to hold them to account. When the House Intelligence Committee decides to close up shop on its farcically incomplete investigation, there’s not much that can be done about it (unless and until the majority is voted out of office). And if Trump ultimately decides to light the fuse that leads to the explosion of the Mueller investigation, there’s no guarantee that anyone will fix responsibility on him for doing so. It’s not cynical to say that any possible congressional response—even the Senate’s more credible Russia probe—would be made according to calculations about the direction of the prevailing political winds.

And here’s why Stormy Daniels is so important. Perhaps the most instructive comparison to Trump’s plight, although the context is obviously different, is the fate of Big Tobacco. Years of inaction and flaccid governmental response to the increasingly obvious dangers of tobacco meant under-regulation of cigarettes and related products. Or take the Catholic Church, which long shielded the abhorrent conduct of many priests behind a high wall of secrecy and denial, enabled by risk-averse politicians. Or consider the opioid crisis, which has generated hand-wringing and some limited efforts to deal with the effects of the scourge of addition—but little in the way of accountability imposed on those who marketed and sold these highly addictive pain-killers.

That’s where civil litigation comes in. As the gadfly Ralph Nader expressed the virtues of the system to me a few years ago: “The civil justice system is the most open, refereed public decision-making forum in the world. Everyone else works behind closed doors. A court of law is open to the press. There’s a verbatim transcript, cross-examination and a trial by jury.” That’s true, but much of the importance of civil litigation to broader political and social outcomes is determined not at trial, but well before. If a case is found to have enough merit to get past a motion to dismiss it (because the plaintiff hasn’t stated a claim that the law will recognize), there will be discovery. That’s where the plaintiff can ask for all manner of documentary and other evidence relating to the claim. And countless cases have demonstrated that the goodies unearthed in that litigation can detonate, exploding-cigar style, on entire industries.

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