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.