Assume that the allegations presented in Stormy Daniel’s – real name, Stephanie Clifford – lawsuit against the President are true. They had an intimate relationship shortly after the birth of his youngest. Later, when Trump was close to the finish line in his 2016 election campaign and women were coming out the woodwork disclosing inappropriate behavior by him, she was shopping her own story. Her efforts “came to the attention” of Michael Cohen – possibly a euphemism – Trump’s attorney and, she alleges, premier “fixer”. Cohen aggressively sought to silence her and they agreed to a payment of $130,000. According to Stormy’s complaint, Cohen created a shell company to make (protect disclosure of?) the payment. And Trump, somehow using the nom de guerre of David Dennison (to Stormy’s Peggy Peterson), never signed his side of the non-disclosure agreement. No worries, however. In the face of speculation that this payment may have constituted a campaign finance violation, Cohen has assured us that he paid the money from his own pocket, and that he had not been reimbursed by the campaign (or Trump’s business organization).
So, the hush money deal was somehow leaked – surely by neither Cohen nor Trump – and Stormy has been affirmatively using her alleged months long affair with the pre-President to promote herself. In recent interviews she has not quite answered whether the affair took place (although pre-agreement interviews indicate it had). Indeed, it is not clear whether she has the photos and the text messages to prove it. Cohen, seeing this, tried to bring an end these efforts, efforts which could only hurt the president. His view, we can imagine, is simple – I paid her, and now she needs to remain quiet. After all, isn’t that what hush money is for?
Now, for sure, Stormy isn’t seriously contending that the hush money, however it was paid, in fact was paid to protect her privacy or reputation. Nor can she possibly be troubled by a possible campaign finance violation on Cohen/Trump’s part, assuming one occurred, or that Trump himself didn’t sign the agreement. She was looking for money and she got it, period – irrespective of whether the deal was initiated by her demand or Cohen’s (at Trump’s behest or not). That she claims that Cohen “aggressively” sought to make the deal is kind of silly, isn’t it – she simply could have said “no”. So, instead, she feels, because of these technical violations of the non-disclosure agreement (NDA), she’s entitled to a court order declaring that she’s entitled to still tell all to anyone who will listen, despite the money she had received to clam up. And this is important because, if the NDA is valid, she would be required to pay to Dennison $1,000,000 each and every time she breached the agreement, as that sum “bears a reasonable and proximate relationship to the actual damages which DD will or might suffer”.
Put aside the fact that courts, as a matter of public policy, generally won’t enforce “blackmail” agreements. That’s not this. Stormy is trying to tell her story to the world with no limitations imposed on her except defamation laws. And as the “public figure” Trump is, how will he have any chance of bringing such a lawsuit?
One can understand Daniels’ lawsuit once they learn that days earlier, Cohen (in his capacity as the entity which paid Daniels under the NDA), apparently secretly obtained an order from an arbitrator (a retired judge), prohibiting Daniels from disclosing information protected by the NDA during the pendency of the arbitration.
But here’s the real thing. Given all of the chaos on Pennsylvania Avenue, why is this issue being kept alive? Why is Cohen doggedly pursuing it, making sure it is kept in the press on a daily – even hourly – basis (we know why Stormy is). And for its part, why is the press even talking about it? The story has been out for months. Daniels gave interviews over the years about the affair, then denied it, then winked. No one – not even the most ardent Trump supporter – believes they did not have an affair. After all, who pays $130,000 to keep a liar quiet? But doesn’t the press realize exactly what Stormy is doing here – that the lawsuit is a shakedown following a shakedown, in which a court is being asked to let her speak freely, and the press is letting itself be used to magnify the efforts to continue Stormy’s publicity campaign?
We are not Trump supporters – just read what we’ve written about him over the last year. And Trump is hardly a sympathetic figure given his conduct as alleged, especially while his wife was pregnant with their only child. But sometimes, the press, especially the anti-Trump press, needs to recognize that it’s being played. I suspect, given the publicity she is receiving in the last couple of days, winning the declaratory judgment action is largely beside the point – she’s kept her name and the story in the press by simply having her attorney file a seven page complaint in a local courthouse in Los Angeles.
Again, the alleged shortcomings by Trump in not signing the agreement and maybe committing a campaign violation are hardly what troubles Stormy: she got paid! And there’s no chance on earth that Trump will argue the agreement wasn’t valid, so that he can be free to tell all. With all the problems that the administration and the world are facing, why is this on the front burner? Yes, the lawsuit is the death of common sense – and, while it makes good headlines, the press should realize it.
Joel Cohen practices white collar criminal defense law in New York and is an Adjunct Professor at Fordham Law School. Dale J. Degenshein is an attorney practicing in New York.
[Photo by Ethan Miller/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.