Just hours after a federal judge appeared to indicate that he would throw out Stormy Daniels’ lawsuit against Donald Trump and Michael Cohen over a $130,000 “hush money” payment, as Bloomberg News reported, Daniels and her attorney Michael Avenatti filed a 69-page appeal of the same judge’s decision last October to toss a defamation lawsuit by Daniels against Trump.
Daniels had sued Trump over a Twitter message in which Trump stated that the AVN Hall of Famer was making up a story about being threatened in 2011 by a man who invoked Trump’s name, as Daniels was negotiating to sell her story about a 2006 sexual encounter with Trump to InTouch Weekly magazine.
As AVN.com reported, Federal District Court Judge S. James Otero ruled that Trump’s Twitter remarks, accusing Daniels of creating a forensic sketch of a “non-existent man” and running “a total con job,” were “hyperbole” that fell under First Amendment protections. Otero later ordered Daniels to pay Trump nearly $300,000 in attorney’s fees.
But in their appeal, which may be read at this link, Avenatti and Daniels say that Otero (who was appointed to the court in 2003 by President George W. Bush) was mistaken to rule that Trump’s remarks were simple “hyperbole.”
“A statement is not hyperbole when it asserts 'an objectively verifiable fact,’” the appeal document says. “Mr. Trump’s tweet objectively accuses [Daniels] of lying about her account of the threatening incident in 2011 and her account of her affair with Mr. Trump. These factual assertions are verifiable and not opinion. Accordingly, the district court erred.”
Earlier on Tuesday, Otero heard arguments by Avenatti as well as lawyers for Trump and Cohen in Daniels’ initial lawsuit over the non-disclosure agreement—and according to Bloomberg, the judge grilled Avenatti over why he should let the lawsuit continue after Trump and Cohen admitted that they would no longer seek to enforce the agreement, or ask Daniels to return the $130,000 she was paid for her silence, just days before the 2016 presidential election.
“It seems you’ve achieved … what you sought to achieve,” Otero told Avenatti, according to a Time.com account.
But Avenatti continued to press for the lawsuit to continue, at one point telling Otero that to dismiss the suit would be to “condone the behavior of a convicted felon,” referring to Cohen’s guilty plea to a campaign finance violation by paying the $130,000 to Daniels. “That is not justice,” Avenatti told Otero.
But Otero told Avenatti that Trump and Cohen’s admission that the “hush” agreement was “unenforceable” was all that Daniels was entitled to receive, and told Avenatti that he was “arguing from emotion.”
Otero did not indicate when he would issue a final ruling in the Daniels hush money case.
"It was glorious today to witness Cohen and Trump’s attorneys urging the Court to dismiss the NDA case because, according to them, there is nothing left to decide because Stormy Daniels was right all along and they agree with her," Avenatti wrote after the hearing, on his Twitter account. "Oh what a tangled web they weave..."
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