There is a certain irony that during this particular presidency, one of the most visible legal challenges to Donald Trump isn’t being mounted by the House of Representatives or the Senate, but by a 39-year-old porn star and director.
Stormy Daniels and her high-profile, race-car driving lawyer, Michael Avenatti, are playing a high-stakes legal game in which the money on the line is perhaps the least consequential of the stakes. Daniels and Avenatti look to be cleanly executing a strategy that has the potential to see Donald Trump hauled into court and required to answer questions about his sexual conduct and campaign finances under oath.
The latest round in Daniels v. Trump took place last night on prime time television. Daniels, who alleges she had a sexual encounter with Trump in 2006, claims she was threatened with violence to remain silent. In an interview with the American news program 60 Minutes, Daniels, whose legal name is Stephanie Clifford, alleged she was in a parking lot when, in her words, “a guy walked up on me and said to me, ‘Leave Trump alone. Forget the story.’ And then he leaned around and looked at my daughter and said, ‘That’s a beautiful little girl. It’d be a shame if something happened to her mom.’” When asked by host Anderson Cooper if she took it as a threat, Daniels replied, “absolutely”.
Daniels claims this incident took place in 2011, a few weeks after she agreed to sell her story to In Touch magazine for $15,000. 60 Minutes reported that, back then, the magazine didn’t run the story because Trump’s attorney, Michael Cohen, “threatened to sue.”
No lawsuit was filed over the In Touch story, but on 6 March, 2018, Daniels did sue Trump, asking a California court to void a non-disclosure agreement between her and the US president. According to the legal papers filed by Daniels’ lawyer, in exchange for $130,000, Daniels signed a hush agreement with Trump just 11 days before the 2016 presidential election. The signing also took place in the midst of the Access Hollywood tape fallout.
Daniels told 60 Minutes that it was because of this non-disclosure agreement that, after news of her relationship with Trump broke in January of 2018, she signed a statement denying the affair. Cooper asked Daniels why she signed the denial if it was untrue. She replied: “Because they made it sound like I had no choice.” Daniels went on to clarify that she believed there would be legal repercussions if she didn’t sign the statement, saying: “As a matter of fact, the exact sentence used was, ‘They can make your life hell in many different ways.’” When Cooper asked, “They being…?” Daniels replied, “I’m not exactly sure who they were. I believe it to be Michael Cohen.”
Even before the 60 Minutes interview aired, Trump and Cohen had countersued Daniels for more than $20m. They claim she violated the terms of the non-disclosure agreement by speaking out about her relationship with Trump.
Daniels, and her lawyer Michael Avenatti, argue that the non-disclosure agreement isn’t binding because Trump didn’t actually sign the legal papers. They also argue that the contract is so unfair that the court should refuse to enforce it. If the offer was made in a way she couldn’t refuse, a court shouldn’t gag her and certainly shouldn’t award Trump and Cohen $20m in damages.
For the more salaciously minded, it may come as a disapointment that Daniels declined to reveal to 60 Minutes any images she may have of Trump. When asked by Cooper if he was bluffing about having text messages, pictures, or video, Avenatti said: ”You should ask some of the other people in my career when they’ve bet on me bluffing.” When asked by Cooper if she could describe Trump’s “private parts” Daniels said: “I could. If need be.”
So what does this all mean in terms of implications for Trump himself?
Well, as a lawyer who occasionally practices campaign finance law on behalf of small organisations, even I know that buying someone’s silence to influence a presidential election is a campaign expenditure. The law requires all campaign expenditures be reported to election regulators – but, of course, this payment to Daniels wasn’t – though Cohen claims Trump knew nothing about it.
When a third party makes a payment out of their own pocket on behalf a candidate, that too must be reported. The law counts such payments as an “in-kind” contribution to the campaign. The very most an individual could have legally contributed to Trump’s campaign was $5,400. Cohen claims he paid Daniels $130,000 of his own money.
The prospect of illegal campaign donations and the revelation that Trump employed a draconian non-disclosure agreement to silence a woman might not be as titillating as lurid pictures of the Donald, but both certainly adds to the many serious legal challenges facing his presidency.
Hours after the 60 Minutes story aired, Cohen’s lawyer sent a cease and desist letter to Daniels’ lawyer. The letter claims Daniels made “false and defamatory statements… regarding Mr. Cohen, namely that he was responsible for an alleged thug who supposedly visited Ms. Clifford, while she was with her daughter, and made an alleged threat to Ms. Clifford.” It’s worth noting that in none of the video made available by 60 Minutes do Daniels or her lawyer actually claim Cohen was responsible for the threat.
The fact is, Daniels’ courage in coming forward deserves more than “porn star sues president!” By suing, she potentially has the power to require Donald “grab’ em by the pussy” Trump to answer questions about his sexual conduct under oath, whether he committed campaign finance violations, and to focus attention on whether Trump has used non-disclosure agreements to cover-up his sexual conduct.
She’s refused to be shamed, refused to be silenced, and, along with her lawyer, she’s exerted more legal pressure on the Trump presidency than most cases that have come from more conventional sources.
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