Donald Trump's lawyer might be able to keep Stormy Daniels silent — but that won't end this scandal

Trump lawyer Michael Cohn is entering a legal vortex of his own doing, and things are about to get Stormy

Published March 12, 2018 7:33PM (EDT)

Stormy Daniels (AP/Matt Sayles)
Stormy Daniels (AP/Matt Sayles)

Amid all of his other scandals and often-deliberately outrageous actions, the allegation that President Donald Trump conducted a months-long affair with porn actress Stormy Daniels, the stage name of Stephanie Clifford, ought to have been a blip on the political radar.

Tony Perkins, the ultra-conservative president of a far-right lobbyist group, proclaimed that he was going to give Trump a “mulligan” on the Clifford allegation. In a February survey conducted by Quinnipiac University, only 14 percent of Republican respondents said they believed Trump had not been faithful to his wife, Melania. A much larger number, 42 percent, told pollsters that they thought that Trump, who has boasted of his extramarital sexual exploits for decades, had been loyal. Forty-four percent said they were unwilling to render an opinion.

Yet despite his die-hard supporters' lack of interest, the Daniels imbroglio seems to be expanding.

On Monday, Daniels informed Trump via a letter from her attorney that she is willing to return the $130,000 payment she received from the president’s personal lawyer, Michael Cohen in October of 2016. In exchange, Daniels wants a confidentiality agreement that she and Cohen had signed to be considered “null and void.” In the letter, Daniels’ attorney, Michael Avenatti, says that Trump’s lawyers have until 12:01pm ET tomorrow to respond.

In statements to the press, Cohen said that the funds he provided to Daniels through a shell corporation were entirely his own and that his only motivation was to protect his innocent client.

“Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump,” Cohen told CNN in February when he was asked why he had taken it upon himself to make a large payment to Daniels.

Cohen has repeatedly claimed that Trump did not have knowledge of the settlement negotiations or agreement.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Cohen said in a February statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

Despite Cohen’s attempts to buy Daniels’ silence, the story became public knowledge after the Wall Street Journal reported on the payment in January. Last month, In Touch magazine published an extensive interview with Daniels that it had conducted in 2011 about what she says was a sexual relationship with Trump that began in 2006, shortly after the birth of his third son, and ended in 2007.

Under the terms of the contract, disputes between the parties are to be handled via confidential arbitration rather than court proceedings. NBC News reported that on Feb. 27, Cohen had successfully obtained a temporary restraining order that prohibited Daniels from speaking publicly about the alleged affair. She has already conducted an interview with CBS News about the alleged affair.

The letter is Daniels’ latest effort to speak at length publicly about her claims. The actress and director filed a lawsuit last Tuesday in a California state court seeking to have the contract declared void because Trump had not signed it, even though he was referred to throughout it via a pseudonym.

“Despite having detailed knowledge of the Hush Agreement and its terms, including the proposed payment of monies to Ms. Clifford … Mr. Trump purposely did not sign the agreement so he could later, if need be, publicly disavow any knowledge of the Hush Agreement and Ms. Clifford,” Daniels alleges in her plaintiff’s brief.

While it may seem as thought Daniels may prevail in court since Trump allegedly did not sign the contract, several recent decisions have laid down the precedent that agreements that are not fully executed can still be legally enforceable.

That is what a Massachusetts-based federal district court ruled in a 2015 case called Lease, Inc. v. Rowe International Corporation, which involved a dispute over two companies that sold and manufactured electronic jukeboxes, respectively.

In his ruling, Judge Timothy Hillman wrote that even though the president of Lease America had not fully signed the contract between the two businesses, the fact that they both operated as if it had been fully executed meant that the contract was to be considered valid.

“A written contract signed by only one party may be binding and enforceable where the non-signing party manifests acceptance,” the decision reads.

The Lease America ruling appears to be the only one of its kind in a federal court, but an Ohio appellate court made a similar ruling in 2012, according to Laura J. Bowman, an Ohio-based attorney.

While Cohen may have a strong case in regards to the validity of the allegedly unsigned contract, his statement that Trump knew nothing of the negotiations with Daniels could jeopardize Cohen’s case since the president’s personal attorney is barred in the state of New York, where the rules explicitly require lawyers to keep their clients apprised of any significant legal developments pertaining to them.

The Daniels plaintiff brief highlights this regulation:

The extent of Mr. Trump’s involvement in these efforts is presently unknown, but it strains credibility to conclude that Mr. Cohen is acting on his own accord without the express approval and knowledge of his client Mr. Trump.

Indeed, Rule 1.4 of New York Rules of Professional Conduct governing attorneys has required Mr. Cohen at all times to promptly communicate all material information relating to the matter to Mr. Trump … [U]nless Mr. Cohen flagrantly violated his ethical obligations and the most basic rules governing his license to practice law (which is highly unlikely), there can be no doubt that Mr. Trump at all times has been fully aware of the negotiations with Ms. Clifford. [emphasis in original]

Depending on how mischievous someone is feeling, Cohen could have just opened himself up to a formal bar complaint. That’s in addition to the campaign finance complaints that the left-leaning group Common Cause has filed with the Federal Election Commission asking for an investigation into the payment to Daniels.

The Stormy Daniels legal drama is just getting started.

By Matthew Sheffield

Matthew Sheffield is a national correspondent for The Young Turks. He is also the host of the podcast "Theory of Change." You can follow him on Twitter.

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Related Topics ------------------------------------------

Donald Trump Stephanie Clifford Stormy Daniels Tony Perkins