On January 21, the first of three separate criminal trials against disgraced attorney Michael Avenatti is set to begin in New York City. This trial involves Avenatti’s alleged attempt to extort the sports apparel powerhouse Nike. The federal government alleges that after obtaining confidential information from a client that was potentially harmful to Nike, Avenatti used that information to extort Nike.
Specifically, the indictment alleges that Avenatti threatened to hold a press conference (we know he loves those!) revealing this potentially damaging information, but told Nike he would call it off … for money. In a recorded meeting, Avenatti told Nike it could either agree to pay Avenatti and another attorney $15 million ($12 million upfront, of course) in fees for a purported internal investigation into Nike’s conduct, or make a one-time payment of $22.5 million to Avenatti.
The government has claimed that Avenatti was more than $15 million in debt at the time of his meeting with Nike, and that his debt (including his inability to pay child support) was motive for his attempt to extort Nike. Avenatti has asked the court to keep such purported evidence out of his trial, arguing that it “logically makes no difference” why he hoped to be paid by Nike, “whether to pay off debts, travel the world, or save up for a rainy day.” Avenatti also disputes that he was behind on child and spousal support.
Avenatti steadfastly maintains his innocence (one only need to peruse his Twitter feed), and claims his behavior was entirely legal. However, court filings recently revealed that the attorney who accompanied Avenatti to the meeting with the attorneys for Nike was not exactly comfortable with Avenatti’s behavior during the meeting. Indeed, that attorney was concerned Avenatti had “crossed a line,” and that his behavior may have become “extortionate.” Not sure I’d call this attorney as a witness if I were Avenatti.
Avenatti has made clear, however, that he would like to call several Nike employees to the witness stand. He has served subpoenas on seven different Nike employees, including two individuals that are in-house counsel at Nike. While I am not privy to the defense strategy, my guess is that Avenatti wants to be able to demonstrate to the jury that Nike was in fact engaged in wrongdoing.
There is little doubt in my mind that Avenatti will attempt to portray himself as a hero for exposing Nike’s misdeeds. (Surely, Avenatti’s lawyers know that the truth of damaging allegations underlying a threat is not a defense to extortion, right?)
But this is hardly surprising given Avenatti’s past behavior. Unless your memory is faulty, you’ll recall that Avenatti previously portrayed himself as the only one who could take down Trump and said he was Trump’s “high-profile nemesis.” Avenatti also took credit for the recent fall of R. Kelly.
In Avenatti’s defense, the mainstream media ate up his brash approach to anything Trump, and Avenatti became a regular presence on CNN and MSNBC. Does Avenatti think he can dupe a jury the same way he duped the media? Probably.
The latest issue in the Nike case revolves around Avenatti getting his hands on documents Nike has produced as part of the Southern District of New York’s criminal investigation of Nike. Nike has denied any wrongdoing. Avenatti claims there are 6,000 pages of documents that the government has not yet produced.
His attorneys are making lots of noise as to whether Nike has been fully cooperating in the investigation, as it has previously claimed, and questioning why certain documents were not produced by Nike earlier. But in this lawyer’s opinion, it’s just noise.
Any seasoned criminal defense attorney will tell you the crazier the trial, the better chance of an acquittal. Chaos is a defendant’s best friend. And Avenatti is going to do his level best to make this trial about anything—and anyone—but his guilt or innocence.
To be clear, everyone, even Creepy Porn Lawyer, is presumed innocent until proven guilty. He certainly deserves a fair trial. But a fair trial is likely not going to include a referendum on whether Nike has been making illegal payments to the families of basketball players. It’s extremely unlikely a federal judge in the SDNY is going to allow Avenatti to turn this courtroom into a circus.
Yesterday was a tough day for Avenatti. First, the judge in the Nike case denied Avenatti’s motion to dismiss the indictment. Shortly after that decision came down, the same court denied Avenatti’s request for a court-ordered subpoena to his (presumably former) client for certain materials.
The court still has to rule on the government’s lengthy motion seeking to prohibit Avenatti from introducing a variety of different things. For example, Avenatti has indicated he may seek to introduce recordings of his press conferences and interviews that he submits are “evidence of Client-1’s reasons and motivations for hiring Avenatti, as opposed to a timid lawyer.” (Insert eye roll.)
Avenatti has also indicated that he wishes to admit evidence “that he is a trial lawyer who regularly files civil lawsuit, that the complaints he files often include claims for damages and injunctive relief, and that he often held conferences as part of his litigation strategy.” He may want to be careful opening that door, because if the court deems that as evidence of good character, government prosecutors can rebut with specific instances of bad conduct.
Avenatti has been tweeting that when the evidence is presented at trial, he will be “fully exonerated.” I think Avenatti is going to be very disappointed as to what “evidence” he will be permitted to introduce at trial. I have little doubt that if he is found guilty, he will claim that his hands were tied and the court prohibited from presenting a real defense. And then it will be up to an appellate court.
But in the meantime, he has two other criminal trials to get through. 2020 is going to be a long one for Michael Avenatti.