Michael Avenatti. Photo: David Handschuh/ALM

A criminal defense attorney for Michael Avenatti said Thursday that he planned to subpoena Nike Inc. over claims that the athletic apparel giant had improperly paid college basketball recruits and asked for more time to mount a defense to extortion and related charges.

Avenatti, who has represented foes of President Donald Trump, is facing a Nov. 12 trial date on charges he tried to shake down the shoe company.

Scott Srebnick, Avenatti's lawyer, told a Manhattan federal judge that he wanted to access documents and other materials to prove that the youth basketball coach Avenatti represented had a legitimate claim for wrongdoing by the company.

The argument has so far been central to Avenatti's defense, which claims that the embattled lawyer was acting within his rights when he threatened to go public with damaging information unless the company agreed to pay his client a large settlement and name Avenatti to head an internal investigation at the firm.

According to Srebnick, the process would require extensive motion practice and require U.S. District Judge Paul Gardephe of the Southern District of New York to push the trial until at least early January.

"I do believe Nov. 12 is a little ambitious," Srebnick said at the Thursday afternoon status conference. "I believe the legal issues in this case are somewhat complex, unique."

Gardephe said he would entertain briefs on Avenatti's requests but did not commit to changing the Nov. 12 trial date in the case.

Avenatti, who attended the hearing, declined to comment afterward.

Avenatti has filed two motions to dismiss the government's four-count indictment for conspiracy and extortion, claiming in part that he had been the victim of a political witch hunt because of his representation of Stormy Daniels, an adult film star who said she had an extramarital affair with Trump—a claim the president has repeatedly denied.

In his most recent filing Monday, Avenatti's attorneys argued that he was trying to settle claims by his client, California basketball coach Gary Franklin Sr., who professed to have evidence that Nike had funneled money to recruits in violation of the rules of the NCAA, college sports main governing body. Avenatti's demand, they said, was protected under the First Amendment because the information he threatened to release at a news conference was true and related to Franklin's litigation claims.

On Thursday, Srebnick said he would pursue Rule 17(c) subpoenas of Nike and other individuals to support Franklin's allegations of misconduct, as well as other motions to challenge the scope of the government's case. He said he was seeking evidence of player payments and as a way of showing that the money Avenatti demanded was conservative, if not "maybe a low estimate."

If witnesses invoked their Fifth Amendment privilege against self-incrimination, Srebnick said that he wanted them to do so in front of the jury.

Assistant U.S. Attorney Matthew Podolsky told the court that Avenatti's attempts to put on a "civil trial within a criminal trial" should "raise questions" about the defense's use of Rule 17(c), and pushed back against the idea of a continuance.

"They seem like speculative arguments," he said. "We don't see any basis today to adjourn the trial."

Gardephe, meanwhile, did not take a position on the subpoenas, but noted that the types of discovery available to defendants in criminal cases are narrower than in civil suits, and encouraged Avenatti's team to tee up the issue sooner rather than later.

As for witnesses having to plead the Fifth Amendment in front of a jury, the judge said: "That would be a first for me."

"You'll have an uphill battle convincing me it's appropriate in this case," he said.

A letter from Srebnick laying out the legal issues raised in Thursday's hearing is due by Aug. 30, with the government set to respond the following week. Prosecutors are set to respond to Avenatti's motions to dismiss the indictment next month.

In addition to the alleged extortion plot against Nike, Avenatti is also accused in Manhattan federal court of stealing $300,000 from Daniels, whose real name is Stephanie Clifford, by diverting two payments she received on a book deal.

Meanwhile, Avenatti also faces charges in the U.S. District Court for the Central District of California, where he is accused of embezzling millions of dollars from other clients. An attorney for Avenatti had asked to have those two cases combined in federal court.

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