Serious Trouble
Serious Trouble
Michael Avenatti Is Still a Bad Lawyer
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Michael Avenatti Is Still a Bad Lawyer

Michael Avenatti wins the right to be re-sentenced; The Central Park Five sue Donald Trump for defamation; Rudy Giuliani's Mercedes (and apartment) will be liquidated.

Dear listeners,

For all listeners, we have updates this week on Michael Avenatti, Aileen Cannon, Laura Loomer and Bill Maher. Our valued paying subscribers (thank you for your support!) will also hear about:

  • The Central Park Five lawsuit against Donald Trump,

  • Rudy Giuliani being ordered to hand over assets to the election workers he defamed,

  • FTX defendant Ryan Salame, who alleges (dubiously) that federal prosecutors double-crossed him and his girlfriend, and

  • Ron DeSantis ordering Florida television stations to stop airing commercials for a pro-choice ballot measure.

Michael Avenatti, often accused on this podcast of being a bad lawyer, has won an appeal of his 14-year prison sentence for stealing money from various clients. But that doesn’t mean he’ll be getting out of prison anytime soon. A panel of the Ninth Circuit Court of Appeals says Judge James Selna erred in how he applied the sentencing guidelines in one of Avenatti’s several federal criminal cases — for example, when calculating the losses incurred by the clients Avenatti stole from, Selna failed to account for the countervailing value of the legal services Avenatti provided. It’s not as crazy as it sounds: Avenatti won settlements for these clients, and if he hadn’t stolen their money, they would have owed him substantial contingency fees, meaning the actual losses experienced by the clients were less than the total amount of the settlements they won. But the victory for Avenatti here may be mostly symbolic. Selna will have to go back and do the sentencing math again, but as Ken notes, the guidelines will still call for a long sentence, and the guidelines aren’t binding, so Selna could even decide not to reduce the sentence at all.

ABC News reports that Judge Aileen Cannon is on some kind of shortlist for Attorney General in a possible second Trump administration. Ken does not think this jeopardizes her position overseeing any Trump-related cases: the ABC story is anonymously sourced and does not establish a direct link to Donald Trump himself, and the documents case isn’t even in her hands right now. It’s with the Eleventh Circuit, and by the time it might get back to her courtroom, the issue should be moot: either Kamala Harris will have won the election, or Cannon will be Attorney General, or Trump will have passed her over to nominate someone else as Attorney General. Ryan Routh, Trump’s would-be assassin, has his own set of arguments about why Cannon should be off his case, but Ken doesn’t think those are likely to get much mileage, either.

Laura Loomer has sued Bill Maher for defamation over Maher’s speculation that she is having sex with Trump. But Maher’s comments were just that — speculation — saying “I think it might be” that Loomer is sleeping with Trump because she’s been spending time around Trump and is of the age and “type” that Trump has gone for in the past. As we often discuss, opinions based on disclosed facts are not actionable, no matter how tenuous or stupid the connection between those opinions and the disclosed facts might be. Maher is also helped, legally, by the fact that he is a comedian, speaking on an infotainment program, where statements are as likely to be trash talk or humor as they are to be factual claims.

The Central Park Five — five men convicted of the 1989 rape of a jogger in Central Park, whose convictions were later vacated after a different perpetrator, linked to the rape by DNA evidence, confessed to the crime — are suing Trump for defamation. Trump has long maintained they are guilty, and at last month’s presidential debate, he repeatedly and incorrectly declared that they had “pled guilty,” which they did not. The plaintiffs face some uphill battles, including that Trump can claim substantial truth, by saying that he meant to refer to them having confessed, rather than entering a plea. And as Ken and I discuss, a criminal defendant whose conviction is overturned faces hazards when turning around and becoming a plaintiff who seeks to affirmatively prove innocence. On the other hand, the plaintiffs may look at the example of the E. Jean Carroll case and see the possibility of an outraged jury awarding a large settlement — though these plaintiffs may have more difficulty than Carroll showing that they were specifically injured by Trump’s recent statements about them.

A judge in New York has ordered Rudy Giuliani to hand over a wide variety of his assets for liquidation, including his New York apartment and that Mercedes that Lauren Bacall used to own. (But not the World Series rings that might have been a gift to his son Andrew — the judge is going to have to take some time to figure out that specific issue.) FTX defendant Ryan Salame has a story about prosecutorial misconduct that Ken does not find very plausible (and Judge Lewis Kaplan also seems skeptical of). And Ron DeSantis has gotten slapped down by a federal judge for his efforts to force pro-choice ads off Florida television.

Again, to get that whole conversation, you’ll need to be a paying subscriber (and thank you again if you already are). We hope you enjoy the show.

Best,

Josh

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