The personal lawyer of President Donald Trump, Michael Cohen, reportedly threatened to sue a tabloid magazine if it published an interview with the former adult film star Stormy Daniels in 2011. Daniels told In Touch that she had an affair with Trump that started shortly after Melania Trump gave birth to her son Barron. The threat appeared to work and the story never ran. During the presidential campaign, Cohen used a fake name and shell company to give $130,000 to the porn star to deny any sexual relationship. The publication sets up an interesting legal question of whether Trump will sue as threatened and how this might play out under the standard set out in New York Times v. Sullivan. You have a porn star who does have two clearly opposing statements on the affairs as the main source for the article. However, a lawsuit would present risks that few lawyers would consider worth taking in a legal action.
Cohen also threatened a defamation action against the publisher and author of the Fire and Fury book. While Trump later called for changing libel laws, but there has been no mention of the lawsuit since the Cohen threat. For Cohen not to sue over this publication as indicated, these letters will be cited as another example of empty postering and protestation by counsel.
Four former employees at In Touch magazine’s publisher are cited by The Associated Press as saying that Cohen threatened a defamation action in 2011. Now that the magazine has belatedly defied Cohen, the question is whether this was just another empty threat or whether Cohen will actually file his promised lawsuit.
It would make for an interesting lawsuit. The magazine would have been in a better position to publish in 2011 after it reportedly gave Daniels as polygraph (which she passed) and had no 2016 agreement denying any sexual relationship. In 2016, Daniels said:
TO WHOM IT MAY CONCERN:
I recently became aware that certain news outlets are alleging that I had a sexual and/or romantic affair with Donald Trump many, many, many years ago. I am stating with complete clarity that this is absolutely false. My involvement with Donald Trump was limited to a few public appearances and nothing more. When I met Donald Trump, he was gracious, professional and a complete gentleman to me and EVERYONE in my presence.
Rumors that I have received hush money from Donald Trump are completely false. If indeed I had a relationship with Donald Trump, trust me, you wouldn’t be reading about it in the news, you would be reading it in my book. But the fact of the matter is, these stories are not true.
However, in the interview (and reportedly in discussions with other people and reporters) Daniels said that she indeed had an affair.
Even with this contradiction, the magazine has a story of great public interest and could legitimately run both accounts. The publication will have the advantage of standard that applies to both public officials and public figures. The New York Times v. Sullivan “actual malice” standard requires a showing that the newspaper published a false report with either actual knowledge of its falsity or a reckless disregard of the truth. The publication’s 5500 word articles has a great deal of detail including references to witnesses, dinners, and telephone calls that can be verified. She claims to have met Trump at a golf tournament in Lake Tahoe in July 2006 four months after Barron was born. She goes into embarrassing detail about the sexual encounter in his hotel room and later affair. Writing on behalf of Trump, Cohen has called the entire account and any alleged sexual affair as “completely false.”
If Cohen carries out his threat, Trump would have to be willing to face grueling depositions and discovery in such an action. As I discussed recently with regard to Roy Moore’s empty promise to sue over sexual abuse allegations, it is easier to threaten a libel action than litigate one. Moreover, this precisely what doomed the Clinton presidency. Bill Clinton was not impeached for being a serial adulterer. He was impeached for lying under oath about one of those affairs.
Obviously, Daniels is hardly a compelling witness. She is a porn star who by her own admission had an affair with a married man but later denied such an affair in a written statement. Given these conflicting statements, she is demonstrably a liar. However, that does not mean that she was lying in the 2011 interview as opposed to the 2016 statement. The question is whether Cohen is serious that he wants to litigate to prove the falsity of one over the veracity of the other. I remain skeptical.