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Judge appears likely to toss Stormy Daniels' defamation suit

Last Updated Sep 24, 2018 at 11:00 pm EST

Michael Avenatti, attorney for porn actress Stormy Daniels, arrives at U.S. District Court in Los Angeles, Monday, Sept. 24, 2018. Lawyers for President Donald Trump are going to court to urge a judge to toss out a lawsuit by the actress, whose given name is Stephanie Clifford, over a hush-money deal over their alleged affair. Avenatti is expected to argue that the agreement that resulted in a $130,000 payout was not valid and they won't carry out threats to sue her for breaking the agreement. (AP Photo/Reed Saxon)

LOS ANGELES, Calif. – A federal judge appeared poised Monday to toss out a defamation lawsuit against President Donald Trump by porn actress Stormy Daniels.

Judge S. James Otero said in U.S. District Court that a tweet the president wrote in April appears to be “rhetorical hyperbole” and speech protected under the First Amendment.

Daniels, whose real name is Stephanie Clifford, sued Trump in April after he said a composite sketch of a man she said threatened her in 2011 to keep quiet about an alleged affair with the real estate mogul was a “con job.”

Trump tweeted that the man was “nonexistent” and that Daniels was playing the “fake news media for fools.” He retweeted a side-by-side photo comparing the sketch with a photo of Daniels’ husband.

Otero said he would rule later, but that Trump’s statement seemed like an opinion and speech protected under the First Amendment.

“To allow the complaint to go forward and to have one consider this to be defamatory in the context it was made would have a chilling effect,” Otero said.

Attorney Ken White who blogs about the case and talks about it on the podcast “All the President’s Lawyers” said he thinks Otero wrote a tentative ruling that he would finalize and issue soon.

If Daniels’ defamation case if thrown out it would be similar to a ruling by a New York state judge who dismissed a lawsuit by a political strategist who claimed her reputation was trashed when Trump falsely said she had “begged” for a campaign job and called her a “dummy” on Twitter, White said.

“The court basically said, ‘It’s Trump, it’s Twitter, he known for throwing around insults and this can’t be understood as anything other than exaggerated rhetoric,'” White said of the New York case.

Daniels’ lawyer, Michael Avenatti, said outside court that he would appeal if the defamation suit was dismissed. He said it was ironic that Trump was relied on the First Amendment to shield himself from legal trouble.

“I witnessed something here today that I never thought I’d witness,” Avenatti said. “That is: Donald Trump having a lawyer stand up in a federal court and espouse on his behalf the virtues and how important the First Amendment is in America. This is the same Donald Trump that has crapped all over the First Amendment and the news media for years.”

Otero scheduled a hearing Dec. 3 to discuss Trump’s efforts to dismiss another lawsuit by Daniels over a hush-money agreement related to their alleged affair.

Daniels sued Trump and his former personal lawyer, Michael Cohen, who negotiated the deal, so she could speak publicly about the sexual tryst without fear of reprisal. Cohen had threatened to sue her for $20 million.

Lawyers for Trump and Cohen now say the deal that paid Daniels $130,000 to keep quiet was invalid and they won’t sue her for breaking it.

Daniels has said she had sex once with Trump in 2006 and carried on a friendship with him for about a year.

Daniels had said the agreement should be invalidated because Cohen signed it, but Trump didn’t.

Trump’s attorney said the president never considered himself as a party to the agreement and doesn’t dispute Daniels’ assertion that the contract isn’t valid.

While Trump and Cohen want the court to toss out the litigation as moot, Daniels’ lawyer wants to keep the case alive.

Avenatti, who has frequently and aggressively criticized Trump in the news and has said he’s considering challenging him in the 2020 presidential race, wants to take testimony from Trump about whether the deal was inked to silence Daniels while he was running for president.

Cohen has pleaded guilty to campaign finance violations for arranging payments to both Daniels and a former Playboy model to influence the election.

Essential Consultants, the company Cohen set up to make the payment to Daniels, wants Daniels to return her $130,000 payment. Avenatti wants the defendants to pay his legal fees.

Trump’s lawyer, Charles Harder, said he would ask Daniels to pay the president’s legal bills if he succeeds in killing the defamation suit.