The New York Times reported that “President Trump and a company affiliated with him filed court papers on Monday seeking to force the pornographic film actress Stormy Daniels to raise her disputes through private arbitration, not lawsuits.” Stormy Daniels Case Should Be Resolved Privately, Trump’s Lawyers Say.
Dumb move. This is the triggering event that Daniels’ attorney Michael Avenatti was waiting for to begin discovery. As Mark Sumner at Daily Kos reminds us, Trump files for arbitration with Stormy Daniels:
Last week, a judge turned down a request by Stormy Daniel’s lawyer to avoid arbitration, saying in effect that her attorney had jumped the gun.
Judge S. James Otero of the US District Court for the Central District of California denied the motion for an expedited trial and discovery process, saying Daniels’ attorney, Michael Avenatti, was “premature” in making the motion because Trump and Essential Consultants LLC, the company established by Cohen to pay Daniels the $130,000 to keep quiet about an alleged affair between her and Trump, have not yet filed a petition to compel arbitration, which they have stated they’re going to do.
But now it’s time for Avenatti to pick up his paper and carry it back to court, because Donald Trump is seeking to compel arbitration with Stormy Daniels.
Avenatti is entitled to challenge in court whether there is a valid and enforceable agreement subject to arbitration under the Federal Arbitration Act as a preliminary question.
It’s game on for discovery! Serve that notice of deposition on Donald Trump, Mr. Avenatti. There is no way he is not going to lie under oath. It’s Paula Jones versus Bill Clinton all over again, and should result in a similar impeachment charge for perjury under oath.
Harry Litman, who teaches constitutional law at the University of California at San Diego, explains at the Washington Post, how Trump’s lawyer is in legal peril:
Michael Cohen, that most loyal capo to the president, has marched into a minefield for his boss over the settlement with Stormy Daniels, with grave threats to his license, potential civil liability and even a tangible prospect of criminal charges.
Cohen’s lawyer told CNN’s Erin Burnett last week that Trump “was not aware of the agreement. At least Michael Cohen never told him about the agreement.”
Daniels has sued Trump and Cohen to set aside her hush agreement, and the lawsuit is proceeding in federal court in California. The story Cohen and Trump are taking into litigation, then, is that Cohen was a complete freelancer. He saw a problem for his friend and fixed it, paying with his own funds, while insulating Trump from any uncomfortable repercussions and safeguarding his deniability. Cohen never asked and never knew whether the affair occurred because that wasn’t relevant to him.
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Trump will have no reason to contradict this account, which is designed to provide him maximum protection (and may even be true). So Cohen and Trump’s story has been locked in, and it’s fraught with legal peril.
First, Cohen’s radically blinkered stance sharply increases his exposure to civil liability for defamation of Daniels. Cohen has tried to be careful to leave the characterizations of Daniels’s claim to his own lawyer, but he blundered at least once, publicly implying that Daniels’s account is false — a problem because his strategy requires being ignorant of the facts of the affair.
Second, the rules of professional responsibility are explicit that the lawyer can’t simply enter into a settlement that binds the client but “must promptly inform the client of its substance” unless the client has previously authorized it. In other words, only the client can approve a settlement. Cohen’s strategy thus entails an admission of serious professional malfeasance.
A Bar Complaint and disciplinary action are in his future.
He might have also committed patent, and potentially criminal, fraud against Daniels. He induced her into a settlement agreement without disclosing that Trump had no knowledge of it and, therefore, couldn’t uphold his end of the bargain. The agreement assigns Trump certain obligations, including a release of all his claims against Daniels and a promise not to communicate with Daniels or her family. But how can Trump — who is referred to as a “party” in the agreement — have legally promised to undertake these obligations if he was never aware of them?
Such fraud, under contract law, would mean that the agreement was never properly formed. Certainly, a court or an arbitrator won’t take kindly to learning that an agreement it is being asked to enforce was, on this level, a sham.
Michael Avenatti wins his case for his client.
Finally, Cohen’s insistence that the settlement — made less than two weeks before the election and three weeks after publication of Trump’s notorious comments about grabbing women’s genitals — had nothing to do with the election is, to put it mildly, suspect. The timing opens him to potential civil and criminal charges of making illegal campaign contributions.
But wait, there’s more!
[T]he possibility of criminal charges would more than justify an effort by special counsel Robert S. Mueller III to further investigate, including grilling Cohen and exposing him to the possible jeopardy of lying to the government. So even as Trump faces grave new challenges in the Mueller probe — all without a credible lawyer to oversee a defense — storm clouds gather.
There is a path that could make most, if not all, of the problems go away: Cohen and Trump could change their story and cop to Trump’s having known about and approved the agreement in advance (which likely entails at least a tacit admission of the affair, unless Trump can somehow spin Daniels’s allegations as untrue but still damaging). Cohen would become Trump’s authorized agent, Trump would become a proper party to the agreement, and the agreement would become properly formed and executed. The election-law problems remain.
But that path would mean a political hit for Trump. So the question for both men is whether only Trump’s fortunes weigh on the scale. If Trump is the measure of all things, they may conclude that it’s better for Cohen to be thrown to the wolves than for Trump to absorb the cost of acknowledging the agreement.
In another venue, Trump appeals judge’s decision to let Summer Zervos defamation case proceed:
They filed the appeal less than two weeks after New York Supreme Court Justice Jennifer G. Schecter rejected attempts by Trump’s attorneys to block Summer Zervos’s lawsuit, one of multiple legal cases the president is facing. Trump’s attorneys argued that Schecter’s ruling was mistaken in not dismissing or at least temporarily staying the case.
Zervos had accused Trump during the 2016 presidential campaign of groping her years earlier, charges he denied. Days before Trump took office, Zervos filed a defamation suit, after he said all of the women accusing him of unwanted sexual contact were lying. Trump’s attorneys have argued that he was expressing a political opinion and that he cannot be sued in state court while president.
In her opinion released March 20, Schecter rebuffed their arguments, writing, “No one is above the law.” She cited court precedent that ultimately led to the impeachment of President Bill Clinton in 1998 in finding that “a sitting president is not immune from being sued in federal court for unofficial acts.” She also denied a request that the case be stayed while Trump is in office and wrote that Trump’s comments calling Zervos a liar “cannot be characterized simply as opinion, heated rhetoric or hyperbole.”
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Mariann Meier Wang, Zervos’s attorney, said Monday, “We believe the court’s well-reasoned decision will be upheld, and look forward to proving Ms. Zervos’s claim.”
An appeal from Trump’s attorneys was expected, and the notice filed this week is just a preliminary step. Court documents show that the appeal will probably not be heard before September.
Finally, Trump’s friends at the trash rag National Enquirer are trying to silence his Playboy Playmate girlfriend. National Enquirer publisher seeks to dismiss lawsuit brought by ex-Playboy model who claims affair with Trump:
The publisher of the National Enquirer asked a California court Monday to dismiss a lawsuit brought by a former Playboy centerfold who claims she had an affair with Donald Trump, arguing that the deal it struck with Karen McDougal is protected under the First Amendment.
The 199-page response by American Media Inc. comes less than two weeks after McDougal sued in Los Angeles Superior Court to get out of the deal in which she sold the rights to her story for $150,000. McDougal argued that the National Enquirer violated campaign finance law when it bought her story not to publish it but to bury it, sparing Trump from an embarrassing revelation in the run-up to the 2016 election.
McDougal alleges that AMI colluded with the Trump campaign to hide the story of her affair, citing as evidence company chief executive David Pecker’s friendship with Trump.
In its response, AMI said McDougal was attempting to run roughshod over freedom of the press, suing over an ordinary editorial decision. Media organizations “have a First Amendment right not to publish, and cannot be punished for exercising that right,” the company said in its court filing.
AMI also disputed the notion that the contract prevented McDougal from speaking.
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In its response to McDougal’s lawsuit, the tabloid giant AMI argued that the press is exempt from federal election law, citing dozens of court cases and decisions by the Federal Election Commission.
AMI is represented by a team of lawyers including Lee E. Goodman, a former FEC chairman who stepped down from the commission in February.
In a tweet, McDougal’s attorney, Peter Stris, said: “As we have learned through brave truth-tellers like Ms. McDougal, the tabloid went to great lengths to silence her and others, and they are now attempting to silence her again with the absurd claim that their own free speech was violated.”
In a statement, AMI said that while it disputes McDougal’s legal claims, the company considers her a “valued contributor” and wants to reach an “amicable resolution satisfactory to her and to AMI.”