Avenatti had sought to join the case but withdrew his motion after U.S. District Judge Kimba Wood warned that Avenatti would have to end his “publicity tour” if she granted him standing.
Avenatti did not elaborate on his decision in his motion to withdraw, noting that he could refile it “if necessary, at a later time,” depending on what happens with Daniels’s motion to intervene in the case. That motion has been held pending discussions between Avenatti and federal officials, according to court records.
Avenatti pointed to that motion, rather than the judge’s skepticism Wednesday, in explaining why he suddenly withdrew.
“It is no longer necessary in light of the motion to intervene, which may not be necessary, being delayed,” Avenatti wrote in an email. “We will refile it when and if the motion is taken up.”
Cohen, who attended the hearing but did not speak, is being investigated for possible bank and wire fraud and campaign finance violations as part of a probe looking at his efforts to suppress damaging stories about Trump — such as Daniels’s claims of a sexual encounter with him years earlier — just before the 2016 presidential election.
As part of the probe, federal agents seized Cohen’s records and documents on April 9, prompting a legal fight over who would get access to the materials and when. Cohen and Trump both argued that their attorneys should get to review the materials to see what is privileged before investigators get them. Wood appointed Barbara Jones, a former federal judge, as special master to go over the documents before they are turned over to federal prosecutors.
Jones wrote in a filing submitted Tuesday night that after her reviews so far, the U.S. Attorney’s Office for the Southern District of New York has been given access to more than 292,000 items, and more than 1 million items “not designated privileged or highly personal” were expected to be released Wednesday.
Attorneys for Cohen and Trump had said many of the seized documents and records could be protected by attorney-client privilege. Jones noted that so far, only 252 items had been flagged as privileged by attorneys for Trump or Cohen in two of the four sets of material she’d reviewed, and she said she expected to make a recommendation about those materials by Monday. The number of documents flagged as privileged in the other sets, if any, is not known.
Jones also reported having received additional electronic data over the past two weeks, including “data from a video recorder, two computers, and mobile storage devices” that “includes various video, electronic communications and documents as well as data typically associated with computer usage.”
A significant amount of material still needs to be reviewed. In court Tuesday, Todd Harrison, an attorney for Cohen, said his team had received 3.7 million files, about 1.3 million of which had already been turned over to Jones.
Harrison argued against a mid-June deadline, saying that “we are moving heaven and earth” to rapidly complete a privilege review. He said his firm had 17 people evaluating the materials, which came from 13 mobile devices and 19 other digital-media devices.
“We have people who are working all night,” Harrison said. “We have people who are sleeping on couches.”
Wood was not persuaded, dismissing Cohen’s concerns and those of an attorney for the Trump Organization who argued that a faster pace might degrade the review.
Rachel Maimin, an assistant U.S. attorney, said her office was still trying to access files from two Blackberry devices, which Cohen believed belonged to his wife nearly a decade ago, and the contents of a shredding machine. This material, she said, would be turned over to Cohen’s team as soon as possible.
Wood set the June 15 deadline for attorneys for Cohen, working with attorneys for Trump and his company, to determine what is privileged and turn it over to the special master. Anything not sent to Jones by that date gets handed over instead to a “taint team” of prosecutors who are not part of the investigation into Cohen and would work to determine what is covered by privilege.
Wood also heard arguments about whether Avenatti — who represents Daniels in other lawsuits she has filed against Trump and Cohen — could join the case, providing the hearing’s main drama. Cohen’s attorneys and Avenatti have engaged in an extended back-and-forth over the question, filing dueling letters Tuesday night and then arguing in court Wednesday.
When he entered the courtroom Wednesday, Avenatti approached the bench to find out where he should sit. He was pointed to the back of the room, where he approached Alan Futerfas, attorney for the Trump Organization.
“I was told to pull up a seat and share this table,” Avenatti said with a chuckle before sitting down.
Avenatti said in court that a reporter called him to describe hearing a recorded conversation between Cohen and Keith Davidson — who as an attorney for Daniels negotiated the $130,000 payment she received from Cohen before the 2016 election — and said this could only have been released by Cohen’s team. He said this was “very surprising and disturbing to me” as an attorney for Daniels, whose real name is Stephanie Clifford.
Stephen Ryan, a Cohen attorney, said he was unaware of the release of any audio file. He focused instead on Avenatti’s disclosure earlier this month of financial information related to Cohen.
“The reason I rise today is because I’ve never seen an attorney conduct himself in the manner Mr. Avenatti has,” Ryan said. Avenatti’s motion, he said, was “sidestepping his intentionally malicious and prejudicial release of that information.”
Ryan added, “It was a premeditated drive-by shooting of my client’s rights.”
Avenatti defended his release of the financial information, which prompted the Treasury Department’s inspector general to launch an investigation.
“There’s no evidence we did anything improper,” he said. “We haven’t been contacted by the Treasury Department. We haven’t been contacted by the FBI.”
In their letter Tuesday night, Cohen’s attorneys also pointed to a tweet from Avenatti about Cohen’s finances and to a recent bankruptcy court decision against Avenatti’s law firm. Ryan said that was raised because it showed that “Mr. Avenatti cannot keep his agreements.”
Joanna Hendon, a Trump attorney, said she shared the concerns raised by Cohen’s team about Avenatti. She said that while Avenatti argued that the firm in the bankruptcy case was not involved with Daniels’s litigation, it had sent emails regarding her case.
In response, Avenatti noted that “Mr. Trump had his own fair share of bankruptcies” and added that the president has “tweeted about Mr. Cohen in great detail.”
Avenatti’s enthusiasm for media attention also drew criticism from Ryan and Hendon, and Wood suggested that she shared those concerns. The judge told him that if he is allowed to participate in the process, he would “not be permitted to use this court as a platform for anything” and said he could no longer declare that Cohen is guilty of potential charges.
If Avenatti had been given standing in the case, Wood said, he would have to “stop in its tracks your publicity tour on television and elsewhere.”
After leaving the hearing, Avenatti offered an energetic condemnation of Cohen to the press assembled outside the courthouse. He withdrew his motion to join a short time later.
Berman reported from Washington.