Storm(y) Front, Part 5: Cohen takes the Fifth And Gets A Stay: What And Why?

Last week, Michael Cohen – a man described variously as Donald Trump’s attorney, his “fixer,” or in the words of the President himself when speaking on Fox and Friends last week, someone who handled a “tiny, tiny” percentage of Trump’s legal issues – indicated in the Stormy Daniels civil lawsuit that he would assert his fifth amendment privilege against self-incrimination.  What does this all mean, and why did Michael Cohen take this step?

Let me explain in what, coincidentally, happens to be the 5th installment of my “Storm(y) Front” series of blog posts examining the Stormy Daniels matter.

First, here is some high-level background on the “self-incrimination clause” of the Fifth Amendment, with particular focus on how it applies to this situation. 

The clause itself reads, “[n]o person […] shall be compelled in any criminal case to be a witness against himself…”  The creates a protection that is generally regarded as a “privilege” to avoid doing what the law would otherwise compel (i.e., testify).  The Fifth Amendment privilege against self-incrimination can be invoked in any proceeding (including civil litigation like the Stormy Daniels lawsuit) in which the information sought gives the witness “reasonable cause to apprehend a real danger of incrimination” from answering a question.  The answer may directly incriminate the witness, or provide a link in the chain of evidence needed to prosecute.  The likelihood of an actual prosecution is irrelevant to the question of whether a witness may invoke the privilege, except where there is no chance of prosecution due to some legal bar to prosecution such as the statute of limitations or a grant of immunity.  The chance of prosecution, weighed against the stakes in the civil matter (or other proceeding) is highly relevant to whether a witness should invoke the privilege.

The privilege must be asserted timely, or it is waived, but the waiver applies only for the proceeding in question.  A witness could testify in a civil case about something that would incriminate him and then refuse to testify at a criminal trial.  But by testifying in the civil matter, that witness has not only assisted investigators, he has provided numerous statements that can come into evidence at the criminal trial under several hearsay exceptions.  Notwithstanding what Michael Cohen has done in the Stormy Daniels matter this week, the witness need take no steps with the court to assert the privilege, such as seeking permission from a court prospectively to invoke the privilege (as I will explain, Mr. Cohen was doing something more than merely invoking his Fifth Amendment privilege against self-incrimination).  The witness need only timely invoke the privilege in response to a question put to him in a proceeding. The witness must invoke the privilege on a question-by-question basis.  As a practical matter, in civil cases in particular, if it is known that a witness or party will take the fifth amendment, often the parties will not bother to depose the witness.  But, aside from how this typically plays out practically, the witness cannot make “blanket” assertions of the fifth amendment privilege.

If assertion of the privilege is challenged, the witness must provide evidence establishing a foundation for asserting the privilege.  How much evidence depends on the nature of the question and other circumstances.  The standard is whether the court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution.

So, if you’ve read this far, you’re now a Fifth Amendment Privilege Against Self-Incrimination expert!  Congratulations! Update your resume accordingly. 

So then, now that we’re all on the same page, let’s talk about what was Michael Cohen doing, and why he was doing it.

In the Stormy Daniels lawsuit, Michael Cohen asked the court to “stay” the entire lawsuit because he intends to invoke his Fifth Amendment privilege against self-incrimination.  For anyone not familiar with the term “stay,” this basically means to “pause” the lawsuit where it is and pick it up later – in this context, after the threat of criminal prosecution has passed.  His motion can be found here.  Not many surprises – Mr. Cohen cites the recent FBI raid and the anticipated substantial overlap between the basis for that raid and the subject matter of Ms. Daniels’ lawsuit as a reason for having concerns of prosecution and for wanting to put the breaks on this litigation.

While this seems like an extreme remedy, in fact, it happens with a fair degree of regularity in these situations.  "But wait," you exclaim (probably).  "Above, you said that the witness did not have to do anything to invoke the question like seek permission to do so prospectively, and that the privilege couldn't be asserted on a blanket basis.  What gives?"  All that is true, and yet here we are - in procedural spot that many cases have been in before.  This seeming contradiction comes from the fact that a stay is a fundamentally different thing from the assertion of the privilege.  Mr. Cohen is not required to seek a stay to assert his Fifth Amendment privilege.  He has every right to appear for a deposition and assert the privilege on a question-by-question basis.  He is seeking what is, in fact, additional relief here based on the fact that his assertion of the privilege is in play.   The reason why a court would impose a stay  - something that courts do not necessarily do lightly, but something that is one of the court's inherent powers used to control its own docket - is that it looks into the future and "get real" about what is going to happen in the case if one party is under investigation.  When a court stays a case, it is simply recognizing that, at bottom, everyone would be wasting their time if they tried to conduct discovery with one party (or more than one party) poised to refuse to participate in the process based on the privilege against self-incrimination.

Ultimately, whether to stay civil litigation in deference to related criminal proceedings is within the discretion of the court.  The court is supposed to evaluate several factors that look at the relative need for the moving party to be protected and the unfairness to the non-moving party, the public interest, and so forth.  Facts that matter in this analysis are the overlap between the civil and criminal matters, what stage the criminal matter is in, and therefore, how long might the stay be.  Any time something is left to the judge’s discretion, the “abuse of discretion” standard will be used on appeal.  That means the appellate court will only reverse if the lower court really goes outside of its lane, and therefore, it is very difficult to get a reversal under this standard (as articulated by the United States Sixth Circuit Court of Appeals, an abuse of discretion occurs when “we are left with the definite and firm conviction that the [district] court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal standard.”  United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)). 

Late in the week came word that the judge did in fact stay the Stormy Daniels lawsuit in deference to Mr. Cohen’s obvious need to assert his privilege against self-incrimination.  While Ms. Daniels’ attorney went all over television and social media to fall out of his chair over the news, I cannot say this is a surprise.  The reason why is that judges generally understand the tough position in which the civil defendant who fears self-incrimination finds him- or herself.  It is not just that a person in this position is rendered all but defenseless in the civil case (depending, of course, on how much overlap there is between the pending civil and criminal matters), it is that the person’s opponent can take advantage of the invocation of the privilege against self-incrimination in ways that a prosecutor cannot.  In a criminal trial, as most are probably aware, a prosecutor cannot comment upon the defendant’s failure to testify at all, and certainly not to suggest the defendant’s silence implies guilt of the crime.  Civil attorneys are not similarly restrained by the Fifth Amendment.  To the contrary, in a civil case, invocation of the Fifth Amendment allows adverse inferences to be drawn about the subject matter on which the privilege was asserted.  Also, the party invoking the privilege may be hit with a preclusion order preventing him or her from introducing proof on claims or subjects for which the privilege was asserted, essentially giving that party’s adversary a win by default on the issue in question.  None of this is exactly consistent with affording the parties a full trial on the merits of the case, which most versions of the civil rules governing civil cases explicitly state a preference for. 

As noted, not every case will be stayed.  Certainly, if the potential for an actual prosecution seems speculative or, if reasonably likely, still far off because the investigation is in its early stages, civil courts will be less inclined to stay a case than if there is an actual criminal case pending.  For some judges, however, even an actual, pending criminal matter is not enough. 

Did the judge here make the right call?  I don’t know.  I am inclined to agree with the decision because I have represented people in Michael Cohen’s shoes before, and I have real sympathy for what it is like to be in this pickle.  What I do know, however, is that try as she and her counsel might, Ms. Daniels has no chance of getting this overturned on appeal.  None.

We will see what counsel for Ms. Daniels does here.  His number one goal is to keep the heat turned up, and he is doing well for his client in that regard.  In my opinion, Mr. Trump and Mr. Cohen are on their heels, notwithstanding the built-in advantage Mr. Trump, in particular, has in the document being litigated (see Part 4 of my “Storm(y) Front” series).  That is real understatement considering Mr. Cohen is invoking the Fifth.  Ms. Daniels’ counsel has several alternatives to keep the heat up, but the smart move would not be to appeal the stay order. If he wants to move the case forward, he would be well-advised to file a motion to re-consider and give the judge some ideas for things that could be done over the next 90 days that do not involve Mr. Cohen.  Were I him, I would argue that written discovery should be allowed to go forward because the Fifth Amendment privilege against self-incrimination does not apply to the production of documents.  I would also point to discovery activities that could be directed toward Mr. Trump, who has not made a showing in the record of any need to invoke his Fifth Amendment privilege, and has, on multiple occasions proclaimed his innocence of any criminal wrongdoing.  The argument could be made that Mr. Trump could not possibly have a basis to invoke the Fifth if his public statements are to be believed, and therefore there is no reason to stay the case as to him. 

As I have said before, I am merely an obscure commentator on these issues.  I have no insight – and certainly no input – into what Ms. Daniels’ lawyer is thinking.  However, if he happens to follow the path I lay out here, you had better believe I am going to take credit and tell the world that Ms. Daniels’ counsel "obviously" reads my blog.  Your move, Mr. Avenatti!!