In the Wake Of Stormy Daniels: Trump Must Face A Credible Threat From An Incredible Character

donald_trump_president-elect_portrait_croppedBelow is my column in The Hill Newspaper on the potential legal fallout from the Stormy Daniels interview on CBS 60 Minutes.  Notably, yesterday the White House again expressly denied not just the “allegations” but specifically the allegation that President Donald Trump had a sexual tryst with the porn star.  That direct denial is precisely what I have warned against in this and other columns.  While the Daniels matter is not currently on the table with the Special Counsel, the worsening situation only reinforces why I believe Trump should close the deal on a sit down on the four prior subject matters lead out by Robert Mueller.  Notably, my repeatedly stated view that Trump should sever any ties with his radioactive personal counsel Michael Cohen does not appear likely since Trump just arranged a dinner with Cohen at Mar-a-Lago.  

Here is the column:

The long-anticipated interview of Stormy Daniels on “60 Minutes” was certain to disappoint after two weeks of unrelenting build up. For the first time, millions of viewers were impatiently waiting for the NCAA basketball tournament to end to get to the real action.

The interview itself added few new details beyond a description of a parking-lot threat made to Daniels. On this and other issues, there was a maddening failure to follow up for greater details. Indeed, Anderson Cooper looked about as comfortable as Alastair Cooke introducing “Debbie Does Dallas” to the “Masterpiece Theatre” audience.

Nevertheless, the interview represented a key legal moment in which Daniels unequivocally smashed the non-disclosure agreement (NDA) that she signed with Trump’s personal counsel, Michael Cohen. The stakes have thus changed for the array of figures swirling around Stormy Daniels.

Stormy Daniels

The most immediate risk in the interview runs to Daniels, who admitted that she knowingly signed a “strict contract” not to disclose the information. That agreement comes with a $1 million-per-violation penalty, not just for disclosures but also threatened disclosures. She could also face other civil liability from Cohen or even President Trump, including defamation actions. Such tort claims, however, would open both men up to potentially damaging discovery and depositions.

Of course, the danger to Daniels diminishes dramatically if the agreement is found to be invalid. While the court generally enforces NDAs where money has been accepted, this could be a close question: The agreement itself is missing the signature of Trump (who is identified under the agreement with the false name of “David Dennison”) and boilerplate language on unneeded elements like paternity liability. There is the question of whether the agreement was truly executed without Trump’s signature. The agreement has obligations going both ways, but Trump never appears to have agreed to it.

Moreover, it does appear that the arbitration clause allowed Trump, not Cohen, who signed on behalf of a shell company of his own creation, to seek arbitration. The $1 million penalty would also seem unconnected to any measure of reasonable or cognizable damages that a court would be willing to enforce. In the worst case scenario, the concerns of Daniels are largely financial, which is better than some of the others in this scandal.

Keith Davidson

There are growing concerns over the role played by Keith Davidson, the attorney representing Daniels during the agreement’s drafting and execution. Curiously, Davidson was also the attorney used by former Playboy playmate Karen McDougal, who was given roughly the same amount of $150,000 to sign away her rights to her story in what appears a “catch and kill” agreement with the National Enquirer and its owner (and Trump friend) David Pecker.

McDougal’s filing suggests that Davidson may have had a conflict of interest or undisclosed relationship with Cohen. Davidson has been accused of facilitating false statements from Daniels. When Daniels raised questions over the truth of the statements, Davidson issued an email assuring the media that Daniels was just “having fun…and being her normal playful self.”

In her interview, Daniels says she signed the agreement after being warned that “they can make your life hell in many different ways.” She does not say that it was Davidson who told her that, but there is a question of what Davidson said or did before Daniels signed her statements. Davidson (whose law license was previously suspended but is currently a bar member in good standing) could face possible ethics questions over his role in this scandal.

Michael Cohen

Cohen is facing the most serious legal jeopardy for his ham-handed representation of Trump. I have previously discussed the troubling ethical questions in Cohen using his own funds to pay “hush money” to a porn star for a client. There also are questions over his alleged failure to confer with Trump on a critical binding agreement, as well as the propriety of representations and threats made to different individuals.

However, it is not just Cohen’s license but his liberty that could be at stake if this matter goes criminal. Special counsel Robert Mueller is already looking closely at Cohen’s involvement in Trump deals like the proposed Trump Tower in Moscow and, reportedly, has been asking about payment to women associated with Trump. Cohen’s greatest exposure could be the payment to Daniels just days before the election.

When this payment was first disclosed, I warned that it could present a serious threat to Trump as an “in-kind” campaign contribution. Former Democratic presidential candidate John Edwards was indicted for such payments by third parties to a mistress. Cohen later made matters worse by publicly saying that Trump never reimbursed him. That left an arguable campaign contribution that was unlawful under federal law.

Most campaign-finance violations are treated as civil, not criminal, matters — but this is not most cases. Cohen could find himself under a microscope and is unlikely to improve with closer examination of his methods or dealings. Indeed, Cohen may be one of the few lawyers who could make Daniels look virtuous in comparison.

Donald Trump

The threat to President Trump is still to be seen. For an administration notorious for self-inflicted wounds, this could be lethal if it is not handled correctly. If Trump conferred on the payment to Daniels, he could be accused, like Edwards, of being a party to a campaign-finance violation. McDougal’s payment also could be raised as a possible violation. Nevertheless, it is easy to overstate this danger. When Edwards was indicted, I was critical of the prosecution as an overextension of the federal law. Ultimately, Edward was not convicted on the counts.

The greatest danger will come not from allegations by Daniels but from Trump’s reaction to them. He has, thus far, remained wisely and uncharacteristically silent on the controversy. He would be wise to sever any and all contact with Cohen. The ultimate question is whether Trump will do what Bill Clinton found impossible to do when first confronted with the Monica Lewinsky scandal: Tell the truth.

The vast majority of people believe Trump has had affairs. Indeed, many of his supporters simply do not care. If Trump fails to tell the truth in any interviews with Mueller, a John Edwards problem would become a Bill Clinton problem. He should instead drop the litigation with Daniels and simply say that he will not discuss any past sexual relationships. If forced to answer questions, he should ask to respond in written interrogatories as outside of the four areas laid out by Mueller for his proposed interview.

While Trump could take the Fifth, such an invocation would be a first for a president and raise huge political risks. If he has to respond, he should admit the affair (if it occurred) and be done with it. What he cannot do is try to spin the scandal. That is what caused the ongoing investigation over the statement that he reportedly dictated on Air Force One for Donald Trump Jr. on the meeting at Trump Tower with Russian figures.

Whatever political or personal costs the Daniels scandal presents, those costs have already been largely incurred through leaks and the “60 Minutes” interview. The key is to stop the scandal from metastasizing from a civil to a criminal matter. Daniels is a self-admitted liar and adulterer. However, a lack of credibility does not mean that she does not present a credible threat.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

347 thoughts on “In the Wake Of Stormy Daniels: Trump Must Face A Credible Threat From An Incredible Character”

  1. Ken, you asked “You quit talkin about da GDP and da stock market.”

    I answered, but this just popped in.

    Optimism Abounds: The American Economy is Coming Back Strong

    March 27, 2018
    Consumer and business confidence continues to soar as President Donald J. Trump’s tax reforms and policies are helping the U.S. economy take off after eight years of stagnation.

    WASHINGTON EXAMINER: Pew: Economy ‘Good-Excellent’ Rating Highest in 18 Years

    “Americans rating the economy good to excellent has surged to the highest point since former President George W. Bush took office, according to a new survey. Pew Research Center said that 53 percent rate the economy high and the best in some 18 years. ‘Americans’ views of national economic conditions continue to improve, with the share saying the economy is in good or excellent condition now at its highest point in nearly two decades,’ said Pew.”

    GALLUP: U.S. Concerns About Healthcare High; Energy, Unemployment Low

    “Affordable energy and unemployment have been the issues Americans worry least about for the past two years, given low gas prices and low unemployment rates. Unemployment also tied for last in 2001…. Levels of concern about most of the issues are similar to what they were a year ago, except for the economy and unemployment. Americans’ concerns about those issues continue to decline from their high points after the Great Recession. The percentage of Americans now worried about unemployment is down 36 percentage points from the high of 59% in 2010, including a seven-point decline in the past year. Worry about the economy has dropped 37 points from its high of 71% in 2011 and 2012, with about one-third of that decline coming in the past year.”

    THE HILL: Business Economists Optimistic About Growth: Survey

    “The National Association for Business Economics projected the economy will expand 2.9 percent in 2018, compared to a 2.5 percent projection in December. ‘NABE Outlook panelists are more optimistic about the U.S. economy in 2018 than they were three months ago, especially regarding prospects for the industrial sector of the economy,’ Kevin Swift, the group’s vice president, said in a statement…. Members of the panel cited the GOP tax reductions and the cut to the corporate tax rate as upside risks, NABE noted. ”

    THE WALL STREET JOURNAL: U.S. Consumer Confidence Hits 14-Year High

    “U.S. consumers’ confidence hit a fresh 14-year high this month, as lower-income households reported feeling more optimistic about the economy. The University of Michigan on Friday said the preliminary result of its consumer-sentiment index was 102.0 in March, up from 99.7 in February. That was the highest level since January 2004, and well above the 99.0 economists surveyed by The Wall Street Journal had expected.”

    FOX BUSINESS: Trump Tax Reform Spurs Workforce Investment Growth: EY Survey

    “According to the EY Tax Reform Dollar Deployment Survey, conducted jointly by Ernst & Young LLP’s (EY) Transaction Advisory Services and tax businesses, 89% of companies plan to enhance compensation due to the new GOP tax reform law. ‘We’re seeing that the majority of the savings from tax reform is going to be put back in growth and innovation, which is great news for the U.S. economy,’ EY Americas Vice Chair Bill Casey said Monday during an exclusive interview with FOX Business’ Maria Bartiromo.”

    REUTERS: U.S. Job Openings Surge to Record High in January

    “Job openings, a measure of labor demand, increased by 645,000 to a seasonally adjusted 6.3 million. That was the highest level since the data series started in December 2000 and pushed the job openings rate up four-tenths of a percentage point to 4.1 percent. ‘We believe employers are going to have to pay up to fill the openings, leading to stronger wage growth and sustained consumer spending increases,’ said Ron Temple, head of U.S. equities at Lazard Asset Management in New York.”

    MARKETWATCH: The Number of Americans Collecting Unemployment Benefits Drops to 45-Year Low

    “Initial U.S. jobless claims rose by 3,000 to 229,000 in mid-March, but they remain near the lowest levels since 1970. And the number of people collecting benefits fell to a fresh 45-year low…. The number of people already collecting unemployment benefits, known as continuing claims, fell by 57,000 to 1.83 million. That’s the lowest level since December 1973.”

    THE DAILY CALLER: Two Million Americans Got Off Food Stamps In Trump’s First Year

    “The number of food stamp dependent Americans hit a six-year low in President Donald Trump’s first year in office, reflecting an improving economy and falling unemployment, according to a U.S. Agriculture Department (USDA) report. An average of 42.2 million Americans participated in the Supplemental Nutrition Assistance Program (SNAP) program in 2017, which is an 11 percent decrease from 2013, when a record number of people used food stamps, according to USDA.”

      1. David, if you keep blowing so much hot air we will be seeing global warming. The quantity you are able to blow is astounding. In cold climates, you could keep everyone around you warm.

          1. “Seems to be working although most around here will just call it Spring.”

            David, you and the cows in the field passing gas have something in common. We can call all that hot air Spring.
            —-

            For David only:

            “(Keeling understood immediately that the curve is jagged because plants in the Northern Hemisphere take up CO2 as they grow in Spring and Summer, and release it as they decay in Autumn and Winter.)” __Weart

  2. THE US PEOPLE HAVE BEEN DUPED.

    AMERICA’S LOCAL AND NATIONAL MEDIA NETWORKS ARE ZIONIST LIARS.
    ZIONIST NAZI JEWS CONTROL AMERICA’S LOCAL AND NATIONAL MEDIA NETWORKS.
    THE MOST POWERFUL FORM OF LIE IS THE OMISSION — GEORGE ORWELL
    AMERICA’S ZIONIST MEDIA NETWORKS ARE TELLING US LIES AND OMITTING THE TRUTH.
    THE ZIONIST LIARS HAVE NOT TOLD US ABOUT ALL THE U.S. / ISRAELI ILLEGAL WARS AND 9/11 TRUTH.
    ACCORDING TO U.S. AND INTERNATIONAL LAW ALL THE U.S. / ISRAELI INVASIONS ARE WARS OF AGGRESSION, WAR CRIMES & CRIMES AGAINST HUMANITY.
    THESE ARE THE SAME CRIMES THE NAZIS COMMITTED.
    MILLIONS OF MEN, WOMEN AND CHILDREN HAVE BEEN MURDERED / MAIMED DUE TO THESE ILLEGAL U.S. / ISRAELI INVASIONS.
    WASHINGTON, DC = NAZI BERLIN

    THE ICC, INTERPOL AND US COURTS CAN ARREST & PROSECUTE US / ISRAELI WAR CRIMINALS.

    http://buenavistamall.com/USIsrael.jpg
    http://buenavistamall.com/bushobamatrump3.jpg

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