Posted on April 27 2018
Cohen EC Trump Update 4/27/2018
🤓tiny lesson about the fifth Amendment 🤓
There are a multitude of reasons why, one would invoke their Fifth Amendment Rights. The Fifth Amendment the “self incrimination” is enshrined in our Constitution
- Passed by Congress September 25, 1789. Ratified December 15, 1791.
- The first 10 amendments form the Bill of Rights
- technically speaking you don’t plead the Fifth, you invoke it.
- there are three clauses in the Fifth Amendment:
- Criminal Procedure
- Due Process
- Just Compensation
Judge Orders Michael Cohen to file a declaration in the California Civil Complaint if he plans to imvoke the Fifth Amendment. On April 26, 2018 Cohen filed a two page declaration and attached portions of Transcripts from the two SDNY hearings. When Cohen filed his declaration I actually LLOL’d (legal laughed out loud (👈🏻Totally stole that from Ambassador Eisen)
If you are going to invoke/assert your fifth Amendment right, you must particulaize said invocation. Meaning Cohen’s attempt to lay down a blanket fifth Amendment, not so much. That’s actually not my opinion, it’s a fact and affirmed by many district courts. Appeals Courts & SCOTUS.
Listed below are a tiny fraction of cases previously adjudicated & perhaps most applicable to the Daniels v Cohen, EC, Trump et al Civil Case*:
Securities and Exchange Commission (SEC) v. Pence, No. 15-cv-7077 (GBD) (GWG), 2017 WL 49977792 (S.D.N.Y. Oct. 31, 2017)
Hoffman v. United States, 341 U.S. 479 (1951)
*Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995)
United States v. Miranti, 253 F.2d 135, 139 (2d. Cir. 1958)
Francis v. Wynn Las Vegas, LLC, 262 P.3d 705 (Nev. 2011)
“United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977)
Baranski v. Fifteen Unknown Agents of ATF, 195 F. Supp.2d 862, 870 (W.D. Ky. 2002)
Trustees of the Plumbers and Pipefitters Nat’l Pension Fund v. Transworld Mechanical, Inc., 886 F. Supp. 1134, 1138-39 (S.D.N.Y. 1995).
Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962)
*United States v. One 1967 Ford Galaxie, 49 F.R.D. 295 (S.D.N.Y. 1970) (denying stay of civil litigation pending disposition of criminal charges);
United States v. One 1964 Cadillac Coupe de Ville, 41 F.R.D. 352 (S.D.N.Y. 1966)
State v. Spicer, 1999 WL 458771 (Del. Super. 1999) (upholding lower court stay of discovery in related state case during defendant’s criminal prosecution).
Daniels response to Cohen’s Declaration
Pages 1 & 2
“Defendants offer a skeletal declaration from Michael Cohen asserting an across-the-board, blanket refusal to answer any questions. But such blanket claims of Fifth Amendment privilege are expressly prohibited by law. United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977)”
Here Avenatti correctly argues, as it relates to Cohen and what appears to be his assertion of a “blanket refusal” to answer any and ALL questions:
‘Mr. Cohen’s declaration fails to cure Defendants’ deficient stay application. It is
well settled that in invoking the Fifth Amendment, a “blanket refusal to answer any
question is unacceptable.” United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977)
Pages 3 & 4
Again Avenatti correctly argues why a blanket refusal is not permissible as it would limit the Court’s duty to scrutinize the innocation, proper application and would in many ways chill the Court’s ability to determine said answer would “lead to a injurious disclosure”
“Court has a “duty to scrutinize a witness’ invocation of the Fifth Amendment.” United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998). In order to permit the Court to carry out this duty, the “proper application” of the Fifth Amendment privilege “requires that the Fifth Amendment claim be raised in response to specific questions.” Pierce, 561 F.2d at 741 (emphasis added).
Otherwise, the Court has no ability “to determine whether a responsive answer might lead to injurious disclosures.” Id. When faced with a blanket invocation, the Court “need proceed no further in determining the extent” of any claimed Fifth Amendment rights.”
In what appears to be Cohen’s rush to file the previously ordered declaration, Cohen’s abbreviated response offers no such basis or facts to allow the Court to full review his Fifth Amendment Rights:
“Mr. Cohen has thus failed to provide the Court with a sufficient basis to evaluate his claimed Fifth Amendment rights.”
What I found remarkable is Cohen filed, a Request for Judicial Notice, but never sought permission from the Court to do so. Which is entirely sloppy and bad lawyering by Cohen’s Attorney. Which is oddly confirmed in the actual Notice, itself. Cohen submitted >110 pages of transcripts for the April 13th & 16th Hearings, respectively. There’s zero explaination of why the transcripts support Cohen’s position. It’s akin to Cohen throwing a pot full of under cooked spaghetti at the wall and stands there wondering why none of it stuck.
Avenatti lowers the 💥BOOM💥
Absent Cohen’s testimony, Avenatti correctly asserts the following:
“Moreover, there is no prejudice to Mr. Cohen or any of the other defendants because Mr. Cohen is not the only witness in this case.’
...”Plaintiff pointed out at the hearing, many other witnesses—witnesses with no apparent need at this time to assert Fifth Amendment rights—will have to testify in this case.
This includes, among others,
- Mr. Trump,
- witnesses from First Republic Bank (the bank from which the $130,000 payment was made),
- Keith Davidson (Plaintiff’s prior counsel involved in the Settlement Agreement),
- Mr. Cohen’s assistant or other associates who assisted him with the Settlement Agreement and payment,
- possibly the four individuals named in paragraph 4.2 of the Settlement Agreement,
- and Mr. Cohen’s wife.
“Moreover, as previously noted, because EC does not have any Fifth Amendment rights, Braswell v. United States, 487 U.S. 99, 102 (1988), its records are available to the parties in this case.”
We will see how the judge rules, but this far Daniels/Avenatti have plenty of Case law that tips the balance in their favor, conversely Cohen is in a horrible position and it appears Cohen’s wife could very well be called as a witness. Given “allegedly” Cohen used a Home Equity Loan to pay Ms Daniels the hush money.
Perhaps I’m off base but the notion Keith Davidson could also be called as a witness. Delights me. My working theory is Cohen & Davidson worked in concert to “protect Donald Trump” as in this might have the makings of a criminal enterprise, yes I am saying RICO...but again I could be wrong so be skeptical. - Spicy Out
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