Stormy clouds over the Trump White House: 60 Minutes and a court date

On March 6, 2018, adult film star Stormy Daniels, whose legal name is Stephanie Clifford, filed a lawsuit (and attached exhibits) (.pdf) to void a nondisclosure agreement (NDA) with Donald Trump, identified by the alias David Dennison in the NDA, drafted and entered into by Michael Cohen, the “top attorney” and “fixer” for the Trump organization, on October 28, 2016.

Stormy Daniels received $130,000 in payment (consideration) for the NDA through Essential Consultants, LLC, formed on October 17, 2016 by Cohen, to hide the true source of funds that Cohen claims that he paid from his own personal funds from his home-equity line of credit. Trump lawyer Michael Cohen says he paid Stormy Daniels with his home-equity line.

Note: This is a violation of the Rules for Professional Conduct for attorneys, which has resulted in complaints being filed against Michael Cohen (discussed below).

Earlier this week Daniels’ attorney, Michael Avenatti, made a settlement offer to Donald Trump and his attorney Michael Cohen: Stormy Daniels offered to return a $130,000 payment she received from President Trump’s lawyer in 2016, in a bid to speak freely about a months-long affair she alleges she and the president began having in 2006. The deadline to accept the settlement offer or to proceed to trial has since expired.

The trial court has now set the hearing date. Hearing set in Stormy Daniels’ lawsuit against Trump: The hearing date has been set for July 12 at the Los Angeles County Superior Court.

The lawsuit said Trump never signed a hush agreement to keep Daniels quiet late in the 2016 campaign about an alleged sexual encounter between the two before Trump was president.

The lawsuit said Cohen had signed it on Trump’s behalf and therefore the agreement was void.

The lawsuit also accuses Cohen of continuing the efforts to “intimidate Ms. Clifford into silence and ‘shut her up'” by initiating a “bogus” arbitration proceeding last month without notifying Daniels or allowing due process.

In addition to this lawsuit, Stormy Daniels has taped an interview with Anderson Cooper for 60 Minutes that Michael Cohen may try to prevent airing. Trump Lawyers Are Considering A Challenge To Stop “60 Minutes” From Airing A Stormy Daniels Interview:

BuzzFeed News has learned that CBS plans to air the 60 Minutes interview with Clifford next Sunday, March 18.

UPDATE: CBS tentatively sets March 25 for airing ‘60 Minutes’ interview with Stormy Daniels.

An action to try to prevent the interview from airing would be the latest in a flurry of developments in a case that began just before the 2016 election when Cohen paid Clifford $130,000 in return for her silence about a sexual relationship she allegedly had with Trump in 2006.

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Lawyers associated with President Donald Trump are considering legal action to stop 60 Minutes from airing the interview[.]

“We understand from well-placed sources they are preparing to file for a legal injunction to prevent it from airing,” a person informed of the preparations told BuzzFeed News.

It was not immediately clear what legal argument the lawyers would be making to support the considered litigation, and Trump and his legal team often have threatened litigation without following through on those threats in the past.

Michael Cohen, Trump’s personal attorney who previously was a longtime lawyer for the Trump Organization, directed questions about the possibility of litigation to Larry Rosen, who Cohen told BuzzFeed News is “my attorney handling this matter.”

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An action to try to prevent the interview from airing would be the latest in a flurry of developments in a case that began just before the 2016 election when Cohen paid Clifford $130,000 in return for her silence about a sexual relationship she allegedly had with Trump in 2006. At the time, Trump was under intense pressure over comments he’d made about his treatment of women in the run-up to the vote.

The Wall Street Journal revealed the payment — and Cohen’s route to making it — in January this year, but its details became public only on March 6 when Clifford’s lawyer, Michael Avenatti, filed a lawsuit seeking to void what Avenatti now calls the “hush arrangement.”

The lawsuit followed a temporary restraining order Cohen obtained in arbitration — on behalf of EC, LLC, the company Cohen set up to facilitate the payment — in late February to keep Clifford from talking about the temporary restraining order, the 2016 payment, or the underlying “confidential information” the payment intended to protect.

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Asked for comment, Rosen — Cohen’s lawyer — wrote, “We represent EC, LLC in connection with the arbitration pending in California, in which a TRO against Ms. Clifford was previously obtained.” He made no specific comment regarding the possibility of seeking an injunction to stop the 60 Minutes interview from airing.

Cohen reportedly intervened previously, in 2011, to stop In Touch Weekly magazine from publishing an interview with Clifford in which she detailed the alleged relationship. Four former employees of the magazine told the Associated Press that Cohen had threatened to “aggressively pursue legal action” in connection with the planned story. The magazine, which then held back the story, published the full interview in February, following the Wall Street Journal’s reporting on the 2016 payment.

Any litigation aimed at stopping CBS News from airing Cooper’s interview likely would be an uphill battle, given protections for press freedom against prior restraints — most famously laid out in the Pentagon Papers case in which the Supreme Court ruled that the New York Times and the Washington Post could publish, over the objections of the Nixon administration, classified documents that detailed the history of US decision-making on Vietnam.

Complicating any effort to stop the airing of Clifford’s interview would be the fact that 60 Minutes is not a party to Clifford’s 2016 settlement.

This seems like an extreme effort to silence someone with whom Trump claims he never had an affair.

It could be because of these salacious paragraphs set forth in the NDA:

2.1 Prior to entering into this Agreement, PP came into possession of certain ‘Confidential Information’ pertaining to DD, as more fully defined below, only some of which is in tangible form, which includes, but is not limited to information, certain still images and/or text messages which were authored by or relate to DD.

2.2 (b) DD claims that he has been damaged by PP’s (Daniels) alleged actions against him, including but not limited to the alleged threatened selling, transferring, licensing, publicly disseminating,  and/or exploiting the Images and/or Property and/or other Confidential Information relating to DD, all without the knowledge, consent or authorization of DD. PP denies all such claims. (Hereinafter “DD Claims”).

2.3 DD desires to acquire, and PP desires to sell, transfer and turn-over to DD, and any and all tangible copies of the Property and any and all physical and intellectual property rights in and to all of he Property. As a condition of DD releasing any claims against PP related to this matter, PP agrees to sell and transfer to DD all and each of her rights in and to such Property. PP agrees to deliver each and every existing copy of all tangible property to DD (and permanently delete any electronic copies that cannot be transferred), and agrees that she shall not possess, nor directly nor indirectly disclose, convey, transfer or assign Property or any Confidential Information to any Third Party, as more fully provided herein.

This is lawyerise for text messages and photos/videos on Daniels’ cell phone. Donald Trump may have been “sexting” dick pics to Daniels, just like Rep. Anthony Weiner (D-NY) whom Trump demonized on the campaign trail. And Stormy Daniels is not just a porn actress but also a producer of porn films. There may be a porn video of she and Trump together in action. This NDA says she was to turn over this “Property” to Donald Trump and not to retain any copies, but did she? Only she knows. Of course, this could be just boilerplate language in the NDA — which only begs the question, how many more of these NDAs are there?

The real threat to Trump from this lawsuit comes from litigation discovery: Trump can be subpoenaed to give a video deposition, just like Bill Clinton in Paula Jones v. Clinton. And if Trump does have any of the “Property” described in the NDA, he can be forced to produce them.

Michael Cohen also faces complaints for his “facilitating” payment to Stormy Daniels, allegedly using his own money, that may have violated federal election laws. Common Cause has filed DOJ & FEC Complaints Against Trump Campaign for Failure to Report $130K Hush Money Payment:

Common Cause has filed complaints with the Department of Justice (DOJ) and the Federal Election Commission (FEC) alleging that the payment of $130,000 to Stephanie Clifford (a.k.a. Stormy Daniels), through an LLC, was an unreported in-kind contribution to President Trump’s 2016 presidential campaign committee in violation of the Federal Election Campaign Act. The complaint also asks the agencies to determine whether the payment was made by the Trump Organization or some other corporation or individual, which would additionally make it an illegal in-kind contribution to the campaign. Corporations are prohibited from contributing to federal candidates and individual contributions are limited to $2,700.

The Center for Responsibility and Ethics in Washington (CREW) has also filed a complaint with the Office of Government Ethics (OGE) to determine whether President Donald Trump held a beneficial interest in Essential Consultants, LLC,  that was used by his personal lawyer Michael Cohen to make a surreptitious payment to Stormy Daniels weeks before the election. If the payment was not an “in kind” contribution to the Trump campaign as Cohen claims, then Trump was required by the Ethics in Government Act of 1978 to report the value of “any interest in property held during the preceding calendar year …” “It is incumbent upon OGE to determine whether President Trump included all reportable information on his OGE 278 report when he filed it in June 2017.”

CREW’s argument has been raised with increasing regularity by some legal experts, who say Cohen’s surreptitious payment could be viewed as an illicit campaign contribution.

Michael Cohen may have also violated the Rules of Professional Conduct for attorneys. Above the Law, a legal blog, pointed out last week that American Bar Association rules say lawyers are generally prohibited from providing financial assistance to a client, unless specific conditions are met. (This is not fronting litigation costs for which the client remains responsible to pay).

Lastly, Michael Avenatti told BuzzFeed News that other women have talked to him about potential cases regarding the president, though he declined to discuss details, such as how many women have approached him and the nature of the cases.

No word whether this includes Karen McDougal, the 1998 Playboy Playmate of the year. Her story was reported in The New Yorker magazine. Donald Trump, a Playboy Model, and a System for Concealing Infidelity. This is the story that Trump’s friend David Pecker (that’s his real name, you can’t make this stuff up) at the National Enquirer paid McDougal $150,000 for the rights to her story of an affair just to bury it to help Donald Trump. National Enquirer Shielded Donald Trump From Playboy Model’s Affair Allegation.

This sex scandal is only getting bigger and is not going away any time soon.

It almost makes me feel sory for Melania — almost. I’m sure she knows all the details, and she is not talking.

UPDATE: BuzzFeed maneuver could free Stormy Daniels to speak on Trump:

BuzzFeed may have found a legal opening to allow the porn actress Stormy Daniels to discuss her alleged relationship with President Donald Trump and a $130,000 payment she received just before the 2016 election as part of a nondisclosure agreement she is now trying to void.

BuzzFeed is using Cohen’s libel suit as a vehicle to demand that Daniels preserve all records relating to her relationship with Trump, as well as her dealings with Cohen and the payment he has acknowledged arranging in 2016.

On Tuesday, BuzzFeed’s lawyer wrote to Daniels’ attorney asking that the adult film actress, whose real name is Stephanie Clifford, preserve various categories of documents. Such preservation letters are often a prelude to a subpoena. If Daniels’ testimony is formally demanded in a deposition, the nondisclosure agreement would likely be no obstacle, legal experts said.

The letter from BuzzFeed’s attorney, obtained by POLITICO, argues that Cohen’s role in paying Daniels is similar to allegations in the dossier about Cohen. The dossier alleges that Cohen met Russian legal officials and legislators in Prague in August 2016 in a bid to “sweep … under the carpet” details of the relationship between Russia and Trump campaign officials like Paul Manafort and Rick Gates. Cohen has flatly denied the claim.

“Mr. Cohen’s role in President Trump’s 2016 campaign, including but not limited to any payments he made or facilitated to third parties during or in connection with the campaign, is therefore directly relevant to” Cohen’s suit, BuzzFeed lawyer Katherine Bolger wrote.

Bolger asked Daniels to preserve all records of negotiations, agreements and payments involving Cohen, but also for more direct proof of Daniels’ alleged connection with Trump, including “any and all documents or communications about any relationship and/or sexual encounter(s) Ms. Clifford had and/or was alleged to have had, with President Trump.”

Daniels’ lawyer, Michael Avenatti, confirmed on Wednesday that he’d received the letter from BuzzFeed. Asked how Daniels would respond, he said, “We don’t have a position as of yet.” He declined further comment.

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Cohen’s attorney in the libel suit against BuzzFeed, David Schwartz, said on Wednesday he was aware of the preservation letters and would probably object to any attempt by the news outlet to dig into the Daniels episode or other matters not referred to directly in the dossier.

“Certainly at the appropriate time there’ll be a fight in court as to limitations in discovery in this case,” Schwartz told POLITICO. “We want a very narrow view of discovery for many different reasons. … I think those recipients [of the letters] are going to be irrelevant to the case at hand.”

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A spokesman for BuzzFeed suggested that since the libel suit seeks compensation for damage to Cohen’s reputation, episodes affecting his public standing are fair game for discovery.

“Mr. Cohen’s personal reputation, and his actions on Donald Trump’s behalf, are directly relevant to this case,” spokesman Matt Mittenthal said. “We look forward to defending our First Amendment rights in court.”

CNN reports Another Trump attorney involved in Stormy Daniels case:

New documents obtained by CNN’s “Anderson Cooper 360” on Wednesday suggest a deeper link than previously known between the Trump Organization and the company that Donald Trump’s personal lawyer, Michael Cohen, established in 2016 to pay off porn star Stormy Daniels in exchange for silence about her alleged affair with Trump.

A “demand for arbitration” document dated February 22, 2018, names Jill Martin, a top lawyer at the Trump Organization based in California, as the attorney representing “EC, LLC.” “EC, LLC” is Essential Consultants, according to Daniels’ lawsuit, a company that Cohen established in the weeks leading up to the 2016 presidential election to facilitate a payment of $130,000 to Daniels.

In addition to showing a second attorney connected with the Trump Organization having direct involvement in legal matters related to Daniels, the new documents raise questions about Cohen’s previous insistence that “neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford,” though it is not known whether Martin had any involvement in the case prior to the arbitration filing.

When asked by CNN about the documents, Martin replied with a statement from the Trump Organization that said she was working in a private capacity, on behalf of Cohen’s attorney Lawrence Rosen. “The Trump Organization is not representing anyone and, with the exception of one of its California based attorneys in her individual capacity facilitating the initial filing… the company has had no involvement in the matter.”

That doesn’t sound right at all.