Stormy Daniels' lawyer: WH victory claim is 'bogus'

Michael Avenatti, the attorney representing the porn star who is suing President Donald Trump, says the President's personal lawyer had a restraining order issued against her.

Posted: Mar 9, 2018 4:02 PM
Updated: Mar 9, 2018 4:04 PM

On Tuesday, porn star Stormy Daniels sued President Donald Trump and his attorney Michael Cohen. At issue was the non-disclosure agreement Daniels and Cohen had signed just before the 2016 election -- a move aimed at ensuring her silence about an alleged affair with Trump in 2006. Daniels is claiming that because Trump himself never signed the hush agreement, it is null and void -- and that she is free to tell the story of her alleged relationship with the now-president of the United States.

It's complicated. To guide me through the legal brambles, I sought out the one and only Jeffrey Toobin. Our conversation, conducted via email and lightly edited for flow, is below.

Cillizza: Let's start with the lawsuit Daniels filed on Tuesday night. Is there precedent for this sort of suit? Does she have a chance to win and get out of the hush agreement?

Toobin: She does have a chance to win, and her argument is pretty simple. She says she is not bound by the hush agreement -- and its non-disclosure provisions -- because Trump did not sign the agreement. Thus, because all parties did not sign, it's not a valid contract.

Acceptance of this argument might open her to the argument that she should return the money because, as she now argues, she received it pursuant to a non-valid contract. But if a court were to hold that the contract was invalid, she would not be bound by the non-disclosure agreement. There is also a chance that a court might hold that the contract, even if it's technically valid, had provisions that were against public policy -- for example, that the non-disclosure agreement was too onerous or that Michael Cohen had voided it by speaking out on the case.

Cillizza: Where does the lawsuit go from here? Is it possible that Trump would have to submit to discovery of some sort? Or is this simply between the shell company Cohen set up and Daniels?

Toobin: At the moment, Daniels is still barred from speaking because an arbitration judge enforced the non-disclosure provision. But that temporary order will not last very long. At some point, the case will almost certainly go to a Superior Court judge in California. At that point, Trump will have some difficult options. He can argue that the contract is valid -- but that will involve acknowledging that he agreed to pay her the hush money. It might also open Trump up to having to give a deposition.

Forcing Trump to go to court would be a public relations victory for Daniels. But she faces a risk, too. If a court were to uphold the contract, the court could find that she violated the agreement and would have to pay the $1 million award that is called for in the contract as a penalty for breach.

Cillizza: I am confused about this arbitration hearing that Trump allegedly "won" last month. Did Daniels even know about it? How is this possible? And is this "arbitration" that Sarah Sanders referenced the same thing as the restraining order Michael Cohen sought against Daniels?

Toobin: This is definitely confusing, and I don't have all the answers. The contract, like many contracts these days, includes an arbitration clause, which means that any disputes arising out of it go to private arbitration rather than to a courtroom. Trump and Cohen persuaded an arbitrator to hold Daniels to the non-disclosure agreement, apparently without any notice to her. That's unusual, but not unprecedented. The same rules of due process that apply in court do not apply in arbitration proceedings. (This is a major complaint about arbitration, by the way.) You are right that this decision by the arbitrator is both the one that Sarah Sanders agreed to as well as the one Michael Cohen obtained. The arbitrator's decision, though, is only temporary; there will have to be more proceedings, probably now in Superior Court.

Cillizza: What is the legal liability -- if any -- for Cohen and Trump here? Where are they most vulnerable?

Toobin: I don't think there is any likely legal liability for Cohen and Trump -- that is, I don't think they will have to pay any damages to Daniels or anyone else. But Trump is highly vulnerable in a public relations sense. I think it's likely at this point that Daniels will be able to tell the full story of their relationship and disclose any photographs, text messages or other documentation.

Cillizza: Finish this sentence: "Legally speaking, the most likely outcome of this Daniels vs Cohen/Trump action is ______________." Now, explain.

Toobin: "Daniels gets to tell her story."

This is a gut feeling based on how I've seen cases like this resolved. (Certainly, though, there is nothing much like this crazy matter.) When a matter enters the public domain, it's very hard to hold someone to a non-disclosure agreement. That is especially true when there is a political check (if not a legal one) on Cohen and Trump from fighting too hard to keep the secret. It's more likely that Daniels will at some point just spill the beans, and Trump and his supporters will call her a crazy liar. He'll say it's just more fake news, and most of his supporters will believe him -- or they'll say they believe him.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 730969

Reported Deaths: 13434
CountyCasesDeaths
Marion1000031743
Lake53771970
Allen40668678
St. Joseph35733552
Hamilton35629408
Elkhart28577442
Tippecanoe22402219
Vanderburgh22310397
Porter18776308
Johnson17970379
Hendricks17244315
Clark12985191
Madison12673339
Vigo12449247
LaPorte11928211
Monroe11893170
Delaware10696186
Howard9924216
Kosciusko9410117
Hancock8284141
Bartholomew8070156
Warrick7784155
Floyd7669178
Grant7060174
Wayne7051199
Boone6700101
Morgan6576139
Dubois6156117
Marshall6050111
Dearborn581378
Cass5808105
Henry5720103
Noble561384
Jackson501773
Shelby491996
Lawrence4546120
Harrison435872
Gibson435492
DeKalb428485
Clinton427453
Montgomery424189
Whitley396139
Huntington391980
Steuben387857
Miami381866
Knox371990
Jasper366047
Putnam360760
Wabash354179
Adams341354
Ripley339770
Jefferson330981
White314354
Daviess297399
Wells291581
Decatur285492
Fayette280762
Greene278985
Posey271533
LaGrange266770
Scott266354
Clay260247
Randolph240781
Washington240732
Spencer232131
Jennings230149
Starke216654
Fountain212346
Sullivan211942
Owen200256
Fulton195440
Jay195130
Carroll189320
Orange183654
Perry183037
Rush173425
Vermillion169143
Franklin168135
Tipton162845
Parke146316
Blackford134932
Pike134334
Pulaski116845
Newton107834
Brown102141
Crawford99814
Benton98614
Martin89115
Warren82115
Switzerland7918
Union71010
Ohio56811
Unassigned0416

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1085733

Reported Deaths: 19441
CountyCasesDeaths
Franklin1261201400
Cuyahoga1124072120
Hamilton801491206
Montgomery515591014
Summit47292946
Lucas42275788
Butler38396584
Stark32412907
Lorain25046481
Warren24313300
Mahoning21629588
Lake20725369
Clermont19803238
Delaware18537133
Licking16436212
Fairfield16230200
Trumbull16082468
Medina15309264
Greene15099244
Clark14017299
Wood13113189
Portage12890203
Allen11675232
Richland11382199
Miami10686217
Wayne8843211
Columbiana8816229
Muskingum8815133
Pickaway8582121
Marion8539135
Tuscarawas8487244
Erie7917154
Hancock6929127
Ross6858155
Ashtabula6830170
Geauga6697148
Scioto6417101
Belmont5920167
Union571048
Lawrence5560102
Jefferson5544151
Huron5439119
Darke5364123
Sandusky5359121
Seneca5290121
Athens520058
Washington5160109
Auglaize491984
Mercer480885
Shelby470093
Knox4495110
Madison436661
Putnam4287100
Fulton423969
Ashland423189
Defiance421097
Crawford3978107
Brown395057
Logan382376
Preble379898
Clinton372963
Ottawa367479
Highland355662
Williams340275
Champaign333458
Guernsey316253
Jackson312652
Perry295350
Morrow285639
Fayette282250
Hardin271464
Henry269366
Coshocton265357
Holmes2611101
Van Wert243763
Adams238552
Pike237734
Gallia235949
Wyandot231555
Hocking215462
Carroll191647
Paulding173340
Meigs144940
Noble133337
Monroe132342
Harrison108537
Morgan108523
Vinton83515
Unassigned02
Fort Wayne
Clear
37° wxIcon
Hi: 62° Lo: 36°
Feels Like: 37°
Angola
Clear
32° wxIcon
Hi: 61° Lo: 33°
Feels Like: 32°
Huntington
Partly Cloudy
34° wxIcon
Hi: 61° Lo: 35°
Feels Like: 34°
Decatur
Clear
37° wxIcon
Hi: 62° Lo: 36°
Feels Like: 37°
Van Wert
Partly Cloudy
37° wxIcon
Hi: 62° Lo: 35°
Feels Like: 33°
Frost is likely Tuesday night as lows fall into the low to mid 30s.
WFFT Radar
WFFT Temperatures
WFFT National

Community Events