Donald Trump

Sex, Lies, and Constitutional Law: The Stormy Daniels Settlement Agreement

There is, it turns out, more to the Stormy Daniels Affair than meets the eye.

|The Volokh Conspiracy |

[UPDATE 3/20: For those of you who are interested in the issue I raise at the end of this post concerning enforceability of arbitral award in cases involving speech restrictions, you might want to take a look at Bruce Wessel's article in the ABA Journal on "Preliminary Injunctions Enforcing Contractual Nondisparagement Clauses" (scroll down to p. 20)]

Here's what we now know: First, that Ms. Daniels (aka Stephanie Clifford) was paid $130,000 a few weeks before the 2016 election. Michael Cohen, one of the Trump lawyers, has admitted making that payment—though he insists, risibly, that he did so out of his own pocket! {File Under: "Not remotely credible!"}

Second, we now know that there was a written contract between Daniels and Trump*—entitled "Confidential Settlement Agreement and Mutual Release; Assignment of Copyright; Non-Disparagement Agreement."

* To be fair, we can only be 98% certain that Trump was actually a party to this contract. It's all very cloak-and-dagger; you can read it for yourself here.

On its face, the Agreement purports to be between "Peggy Peterson" and "David Dennison." But the Agreement goes on to state that these names are "pseudonyms whose true identity [is] acknowledged in a Side Letter." The Side Letter, in turn, says that "the person referred to as Peggy Peterson in the Settlement Agreement is Stephanie Gregory Clifford, aka Stormy Daniels." It then idenfies the person referred to as "David Dennison"—but that name has been blacked out (at least, in the publicly-available copies of the Side Letter that I have seen).

So I suppose that it could be somebody other than Trump; Mr. Cohen might have had another client who was willing to pay Daniels $130,000 in late October 2016 to keep quiet about something. But as far as I'm aware, nobody (including, notably, Mr. Cohen) has made that suggestion, and I am proceeding on the assumption that Mr. Trump—our president, and the Leader of the Free World—is the guy wearing the wig and fake mustache and calling himself "David Dennison."

And third, we now know exactly what the Agreement said, because Daniels has put it into the public record, appending it to a Complaint she recently filed in CA Superior Court seeking a declaration that the Agreement is invalid and unenforceable [more on this suit below].

The Agreement makes for very interesting reading; I recommend it. It's a pretty complicated and strange-looking little legal animal that Mr. Cohen cobbled together—complicated enough so that it makes one suspect that this was not the very first time Mr. Cohen had occasion to put a deal like this together, though I admit that is just rank speculation on my part.

The gist of the Agreement is that:

1. Daniels receives $130,000, in exchange for which she promises never to disclose, to anyone "any information pertaining to [Dennison/Trump] and/or his family . . . and/or friends," including any Dennison/Trump-related

"business information, familial information, any of his alleged sexual partners, alleged sexual action, or alleged sexual conduct, related matters or paternity information [uh-oh!], legal matters, contractual information … private social life, personal lifestyle, [or] private conduct."

2. To the extent that any of that information is in tangible form—"letters, agreements, documents, audio recordings, images, electronic data, photographs, canvas art, . . . or art in any other form or other media"—Daniels also promises to transfer ownership of all such property, and ownership of all the intellectual property rights in such property, to Dennison/Trump.

3. Daniels also promises not to "disparage" Trump or his family, to anyone, ever.

4. Dennison/Trump, for his part, in addition to promising to hand over the dough, agrees that he will not sue Daniels for any efforts she may have made "to sell, exploit and/or disseminate" this information prior to the date of the Agreement.

Oddly, the Agreement requires Daniels to identify by name, in the Agreement itself, all persons to whom she had made a prior disclosure of any confidential information about Dennison/Trump. [See Sec. 4.2] She did so, listing four individuals, whose names are clearly legible on the copy of the Agreement filed by Daniels and now publicly posted: Mike Mosney, Angel Ryan, Gina Rodriguez, and Keith Munyan. I assume I'm not the first person to wonder how much of Daniels' story these folks can corroborate.

5. For any breach by Daniels, Trump can, due to the "irreparable nature of the injury he would suffer" in the event of such breach, claim "liquidated damages" from Daniels in the amount of $1 million per item disclosed.

6. The parties agree to "mandatory binding confidential arbitration," before an arbitrator who shall have "the right to impose all legal and equitable remedies that would be available to any of the parties in . . . any court of competent jurisdiction," to resolve all controversies under the Agreement. The parties—and this is in bold-faced type in the Agreement—have "no right of appeal or review of" the arbitrator's decision. (See Sec 5.2). One and done.

What to make of all this?

Well, just for the record we should note one other thing we now know: that Trump has been lying to us about this all along—when he denied that any "hush money" was paid, or that he was involved in any sort of deal with Daniels.

I know, I know—who cares about that anymore? Such a silly old norm: "telling the truth." Trump is, as we all now, a norm-disrupter, and he doesn't have to do things like telling the truth. He didn't have to "tell the truth" on The Apprentice, and look at the ratings he got there! But I'm going to continue to cling to the quaint notion that our public servants should tell us the truth.

And where, by the way, are the zealous guardians of the public morality heretofore so vocal in the Republican Party? Can you imagine—I mean really, can you actually imagine?!—what their reaction would have been had they discovered that Barack Obama had had an extramarital affair with a porn star and paid her $130,000, two weeks before the 2008 election, to keep quiet about it?! The silence on the part of the Republicans here is deafening. I suppose there are, historically speaking, more egregious examples of mass hypocrisy on this scale—but not many.

But beyond all that, there are some interesting little legal wrinkles here; you could easily spend a couple of weeks in a Contract Law class digging into this Agreement, and I'd bet it will make its way as an exam hypothetical in law schools all over the country later this spring.

Take Ms. Daniels' lawsuit, for instance. It asserts that the Agreement is invalid, and therefore of no force and effect, because one of the parties—Trump—didn't sign it.

It does indeed look like he didn't sign it; there's no signature next to the "David Dennison" signature blocks, on either the Agreement itself or the Side Letter (at least in the copies posted by Daniels).

But as every first-year law student knows, the general rule is that contracts are valid and enforceable without a signed writing. There are exceptions to that general rule: contracts that fall within the so-called "statute of frauds"** must be in writing and signed by the parties.

** Referring, as we generally do, to this requirement (viz., that certain contracts are invalid if not memorialized in a signed writing) as the "statute of frauds" is something of a confusing misnomer. In the U.K., there is an actual "Statute of Frauds," enacted in 1677, setting forth the writing requirement for, e.g., marriage contracts, certain contracts by estate executors, contracts transferring ownership of real property, and some others. [This statute, as it happens, was repealed in 1954]. In the US, this has long been considered part of the general common law, inherited from the British, which each individual State may modify (and has modified, either by statute or by decisional law or both). There are also dozens of other "statutes of frauds" scattered throughout the law; federal copyright law, for instance, provides that a transfer of copyright is not valid unless it is in writing and "signed by the owner of the rights conveyed," the Uniform Commercial Code requires a signed writing for all transfers of goods over $500, certain securities transactions must be in writing, and so on.

Though I won't pretend to any particular expertise on the matter, I am somewhat skeptical (as are other commentators) about Daniels' argument that Trump's signature was required under California's statute of frauds, and that the Agreement is therefore invalid and unenforceable.

However …

1. While the Agreement may be valid and enforceable without Trump's signature, I don't believe it is valid and enforceable if Trump didn't know anything about it. Contracts do not always require a signed writing; but they do always require that the parties voluntarily undertake to enter into an enforceable agreement. [It's one of the reasons you can't enter into a contract with a 3-year old, a monkey, or someone who is non compis mentis.]

This puts Trump on the horns of a dilemma. If he says, under oath, what he has said publicly—that he didn't know anything about this arrangement with Ms. Daniels, and that it was just Michael Cohen acting on his own—then he plays right into Daniels' hands; if one of the parties didn't know there was any agreement among them, how can it be binding on anyone?

On the other hand, if he admits that he was a party to this contract, and knew of its existence and its basic terms, then he is exposed as a liar. It sets up the classic cross-examination question: "So which is it, Mr. Trump? Were you lying then, or are you lying now?"

And while we're at it, notice that the Agreement (Sec. 8.6) has one of those absolutely ridiculous provisions that lawyers sometimes insert as "boilerplate" into contracts like this one:

"Each of the Parties represents, acknowledges, and declares that … she/he has carefully read this Agreement, knows and understands this Agreement's contents, and signs this Agreement freely, voluntarily, and without either coercion or duress."

It's not the worst thing in the Agreement (see below), but it is pretty awful. It is not only ridiculous; it is of no legal force whatsoever because it is completely devoid of meaning. Suppose one of the parties has, in fact, not read or understood the contract; a representation placed in the very contract that he hasn't read or understood stating that he has read and understood it, is incoherent nonsense. Think about it: Suppose you're signing this contract because someone has a gun pointed at your head; what possible meaning could your representation that you're acting "without coercion or duress" have? You're only making that representation for the same reason you're signing the contract: because you have a gun pointed at your head. It reminds me of the hostage or prisoner-of-war videos, where the prisoner, hands tied behind his back, says "They're really treating me very well—and I'm saying that of my own free will."

2. There are many ugly things in this Agreement, but for my money, the ugliest is in Sec 4.3.6:

"Fore (sic) greater clarity [Daniels] will never discuss with anyone the contents of this Settlement Agreement, nor will she voluntarily confirm the existence of this Settlement Agreement."

This amounts to a contractual obligation on Daniels' part (though not on Trump's) to lie. It's very Trumpian in that respect; while he doesn't need to be contractually obligated to lie (because it comes so naturally to him), he imposes the obligation on others. To comply with this provision, presumably Daniels must say "No" when asked "Did you enter into a settlement agreement with Mr. Trump?" [And Trump's lawyers will no doubt assert that her filing the lawsuit (and appending the Settlement Agreement to her pleadings) is itself a violation of this provision.]

3. And that brings us to the First Amendment.

"Wait a minute!," I hear you cry. "The First Amendment? The First Amendment has no bearing on any of this. This matter involves private parties acting pursuant to private contracts, and everybody knows that the First Amendment only contrains the government from doing certain things (like abridging the freedom of speech), not private parties."

True enough—but let's think this through for a moment.

Trump's lawyer has now invoked the mandatory arbitration clause in the Agrement and obtained an order from an arbitrator stating that Daniels "is precluded from disclosing … or actively inspiring anyone to disclose" any of the "Confidential Information" as defined in the Settlement Agreement, as well as from "disclosing … or actively inspiring anyone to disclose the fact of the commencement or pendency of this Arbitration and any details relating thereto." (emphasis added)

[There it is again: an order to lie, issued on behalf of the President of the United States].

The arbitrator's order calls itself a "Temporary Restraining Order." This, too, burns me up. It's not a "Restraining Order" at all. Private arbitrators do not have the power to "restrain" people; that is a power reserved for courts and public authorities. Calling it a "Temporary Restraining Order"—in hopes, perhaps, that we (or Ms. Daniels) would confuse it with the familiar legal process that goes by that name (and which even has a nickname: the "TRO")—doesn't make it a Restraining Order; you can call a duck a dog, but it's still a duck.

A true "Restraining Order," temporary or otherwise, is a court-issued and court-enforced injunction; if you violate it, you can be held in contempt of court and actually "restrained"—i.e., thrown into jail. If it's a true Restraining Order, banks will hand over your money as directed therein, because they, too, face the prospect of "restraint" if they don't do as directed. Not so, however, just because some arbitrator has ordered you to pay money, and arbitrators cannot (yet) throw you or bank officers in jail for defying their orders; even if the arbitral agreement purported to give the arbitator the power to imprison you should you breach the contract, that provision would be deemed void on grounds of public policy (and the 13th Amendment prohibition on involuntary servitude).

An arbitrator's order, of course, can become a real, honest-to-goodness "Restraining Order," but only by enlisting the assistance of a court in the enforcement of the arbitrator's order. And of course, courts do frequently provide that assistance, and developments in the law over the past decade or so have made it easier to obtain enforcement of arbitration decisions.

And there's the rub—at least, for this particular order ("You may not speak about Donald Trump, and you must, if asked, lie about the existence of a Settlement Agreement"). It would be obviously and blatantly unconstitutional as a violation of the First Amendment if issued, say, by an executive government agency, or by the police. And if instead of it being an executive agency or the police ordering Ms. Daniels not to speak it were a federal or state court, why is that any less unconstitutional? The courts are part of the government, aren't they? So they have to abide by constitution restrictions on government action, don't they?

[Students of constitutional law will recognize this argument as coming from Shelley v. Kramer (334 US 1), a 1948 case in which the Supreme Court unanimously struck down enforcement of racially restrictive covenants in private homeowners' association contracts:

"Private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes, standing alone, do not violate any rights guaranteed by the Fourteenth Amendment. [B]ut it is violative of the equal protection clause of the Fourteenth Amendment for state courts to enforce them." [Emphasis added]]

I don't think a President of the United States can go to court and obtain an injunction against Ms. Daniels ever saying a disparaging word against him, because I don't think the First Amendment would countenance it. Mr. Trump cares little for the First Amendment, but I don't think that view is shared, by and large, by our courts.

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  1. It seems to me that the main reason Prez Trump wants to go to arbitration (well, there are dozens of reasons, but this one is key) is that, if this were a regular suit in state or federal court, our fair maiden would have the right to depose Mr. Trump. Given the broad reach of pre-trial discovery, I suspect that the last thing our president wants is to be put under oath and asked about his lifelong history of sexually assaulting women, his history of cheating on literally every girlfriend and wife he’s ever had, and other awful things I haven’t even thought of (“Pee Pee Tape II, Electric Boogapoo.”…trademark!!!!)

    I can’t see that depo ever happening. Trump *has* to keep this in arbitration. (And, of course, I can’t see him wanting this case in front of 12 citizens from California…or from New York, for that matter.)

    1. You can depose people in arbitration, too. I don’t use JAMS but their rules seem to permit depositions.

      1. You kicked out the JAMS?

      2. Thanks. My area of law does not use arbitration, so that’s helpful info.

        1. The bigger area is honestly publicity. Arbitrations are generally private even filings that would normally be public (e.g., a summary judgment motion and any exhibits). There is no PACER or clerk’s office to obtain filings from in an arbitration. “Filing” is done by emailing it to the arbitrator.

  2. I had the impression that there was a similar dispute (arbitrator orders enforcement of non-disparagement agreement), only between two business corporations instead of between Trump and a porn star.

    Did I make that up?

    1. Post never once makes any solid connection between this contract and Trump.

      And the contract clearly states that DD is an and/or party and it’s thus not at all necessary that an agent for DD sign the contract.

      Seems pretty cut and dried that PP is in violation of a properly executed contract. And yet David Post does handstands and backflips trying to connect this to His Evilness. sigh…another terrible Post post.

      1. The contract appears to make a solid connection between the contract and Mr. Trump.

        1. Not as a contractual party.

      2. It seems to me that not only did DD not sign the contract, but that DD’s attorney did not sign it “as to form” where required to. It may also be of some significance that Cohen did sign “as to form” as the attorney representing EC LLC, and by failing to sign “as to form” for DD as well, he can’t technically claim to be representing Trump’s interests in the contract.

        1. Because of the and/or clause, DD was never under any obligation to execute the contract. EC’s execution was sufficient to make it fully binding to PP.

          1. the and/or clause does not mean that EC’s execution had anything to do with Trump’s. If you read the actual contract, you see that EC is NOT functioning in any sense as a representative of Trump, but as a go between between Trump and Daniels. EC’s only role is to be a source of funds to send to Daniels’ lawyer, and to act as a “mail drop” that allows DD to maintain his anonymity.

            Given the inherent ambiguity of “and/or”, you have to look to the rest of the contract to determine its intended meaning — and its clear that the legal intent of and/or is merely a case of very bad legal drafting of a contract in which Stormy Daniels contracted with two separate entities to complete a single transaction, and not that “DD” and “EC” were interchangeable terms, or that “EC” was representing “DD” in a legal sense.

      3. I had understood that PP was arguing that it was no longer required to comply because DD or his lawyer materially breached the agreement by disclosing its terms.

        1. Ugh, “it”… I did not intend to objectify the woman. Sorry.

        2. that’s one of the arguments.

          the others are that its legally unconscionable, and that the failure of “DD” to execute the agreement renders it invalid (and it asserts that it was generally understood by all parties that unless it was not in effect until all parties had signed.)

    2. I have the impression that her lawyer signed the agreement too as well as the lawyer for DD. IIUC that makes it valid as at least one person from opposing party did sign the agreement. Or am I mistaken that a lawyer can speak & execute legal agreements if so approved by the individual without the individual’s signature.

  3. “I suppose there are, historically speaking, more egregious examples of mass hypocrisy on this scale – but not many.”

    Its like Bill Clinton never existed.

    1. While you are correct, at least prior to this point the conservatives could *claim* to have the moral high ground, even if there was no way to quantify that it actually made a difference in any election, ever.

      The closest you might say that it did, is that the “restoring dignity to the Oval Office” meme from G.W. Bush had some staying power back in 2000. Voters could trust W wasn’t going to diddle interns with cigars and blow his wad onto her her clothing. But considering the closeness of the election, actually showing that it got him any votes that he wasn’t going to get otherwise is likely impossible to prove.

      1. Voters could trust W wasn’t going to diddle interns with cigars and blow his wad onto her her clothing.

        It is gravely unfortunate that they couldn’t trust him to refrain from attacking the wrong country; from precipitating the needless death, maiming, and wrecking the lives of hundreds of thousands of people; and from involving the United States of America in torture, however.

        When former Pres. Bush chortles that ‘Trump is making me look pretty good,’ that doesn’t reflect too well on either man.

        1. Good points, mostly.

      2. As long as you ignore the multiple people claiming assault by Bill… i guess you can equate this to consensual acts by Trump.

        1. JesseAz,

          If you are bringing alleged sexual assaults into it, then why are you ignoring Trump’s alleged assaults? (I use “alleged” loosely given that he is on tape bragging about sexual assault.)

      3. I will never tire of trying to point out that Trump resonated with the electorate that were tired of the GOP and DNC.

        Trump was the None-Of-The-Above candidate in 2016.

        If the Democrats want to use Trump as a club to bash conservatives or the Republican party, that will not assure a liberal or Democrat win in 2020.

        A lot of people who voted for Trump did not want a third term for the Clinton Administration and were not particularly enthused by chamber of commerce/country club Republicans either.

        I suspect Donald Trump’s Republican credentials are about as valid as Michael Bloomberg’s.

    2. I wonder if Bill Clinton signed any contract about this incident.

      YouTube: Juanita Broaddrick Relives Bill Clinton Rape & Hillary Intimidation

      Excerpt:
      BROADDRICK:
      I was completely dressed. I had a skirt and a blouse. He tore the waist of my skirt. And then he ripped my pantyhose. And he raped me. It was very vicious. I was just pinned down? I did not know what to do. I was so frightened. I was only 35 at the time. And it was horrible. I just wanted it to be over with. So he would go away.

      KLEIN: He got up?

      BROADDRICK: No, he held me down for a long time. And then he did it again. I was so ready for him to leave me alone. When he started raping me again. And it was very brief? And he did get up and he straightened himself. And my mouth was bleeding and it was hurting. And he just straightens himself and goes to the door.

      1. I was only 35 at the time…

  4. Why do you keep saying there is an obligation to lie? Outside of a subpoena/compelled testimony situation, all she has to say is “No Comment”.

    In a compelled testimony situation, the normal way NDAs handle those is to say that the compelled party has to give notice to the other party so they can seek a protective order or other relief. Absent such a provision, I have wondered if there is any breach liability of the party testifying truthfully. My guess is no — you could be compelled to testify regardless of the NDA, and compelled perjury is against public policy, so you should have no liability, at least as long as you don’t voluntarily disclose more than you have to.

    Anybody know whether that is the correct analysis?

    1. That was my reaction, too. That’s not a contractual obligation to lie, it’s a contractual obligation to not say anything about the topic.

    2. This is correct.

      An NDA cannot apply to legally compelled disclosures, or other items such as independently developed or public info. A proper NDA must always provide exceptions for these things, lest the entire agreement risk being unenforceable for purporting to do what it cannot do. Notice, opportunity for protective order, requirement to use commercially reasonable efforts to prevent disclosure, etc are all mitigating provisions.

      Furthermore, NDAs or similar provisions within deal documents routinely bar disclosing “the existence of this Agreement or the terms and conditions herein” and such. So there’s nothing unusual about any of that, at least in business context of course.

    3. Yes, Post let his anti-Trump fervor get in the way of clear thinking. Sad!

    4. You’re right; Post was wrong.

  5. With your myopic devotion to legal technicalities and the professional stylings of Michael Cohen, Prof. Post, you miss the important practical and moral issues.

    What happens when Pres. Trump’s evangelical supporters learn that this man was fornicating with a fallen woman in breach of his marital vows?

    What will occur when our guardians of morality discover that this man engaged in such sinful licentiousness but a few months after his partner in holy matrimony had delivered a little blessing to their family?

    What fount of opprobrium and rejection is to be loosed upon the wicked when our connoisseurs of godliness become aware that this man mocked his declarations of piety before God by arranging corrupt hush money for a pornographic actress just before the Lord Thy God of the Bible was to choose him to become America’s leader?

    1. The answer to this preening posturing from the left, the best reply has always been to make an analogy of when President Lincoln was confronted about the unprofessional behavior of General Grant (that he was a slovenly drunkard who chain smoked cigars), to whit, Lincoln’s response was “I cannot spare this man, he fights.” Trump fights for what Christians believe in, and it’s not like they elected him pastor of the local congregation. They know he’s a hypocrite, he was on his 3rd wife, and who knows how many affairs (all public knowledge) even without this latest.

      Besides, Hillary was the other choice, so in other words, there was no real choice.

      1. “They know he’s a hypocrite, he was on his 3rd wife, and who knows how many affairs (all public knowledge) even without this latest.”

        Yes, Trump being a sexual pig is already baked into the cake.

        Plus, the Right is not stupid, they realize the Left does not care about Stormy at all, they just want to use it to advance lefty goals.

        The Left always thinks that this new thing [and not the 354 other prior things] will be the one thing to take Trump down.

        I guess they might be right one day.

        1. Hah, don’t be silly, the left know perfectly well that every moral and ethical stance ever taken by the right and by Republicans and by evangelical christians were cynical hypocritical shams and Trump can do anything we wants, commit any outrage, indulge in any corruption, say what he likes, and you will stand by him.You attacked Michelle Obama for having a vegetable garden.

      2. Did we hire Trump to date our daughters, or to negotiate trade agreements?

        1. I’d rather not have him do either one.

          1. Not your choice.

        2. In other words, to screw one person or 320 million people?

          1. More than 320 million. The trade agreements he wants to destroy are beneficial for all countries involved.

        3. Your daughter could, at least, tell him to fuck off when she realised what an horrific asshole he was.

      3. Trump fights for what Christians believe in

        The backwardness and bigotry, mostly. He knows they are gullible by nature.

    2. This is a law blog! The legal technicalities and professional technicalities are the interesting part!

      1. Only reason I come here too.

    3. I’m sorry, Reverend Kirkland, but you have made an error of fact. The affair with Stormy Daniels was rather more than “but a few months” after Trump’s “partner in holy matrimony” delivered little Eric Trump into the world.

      (As a reverend, of course you know that Trump’s secular marriages with Marla Maples and Melania Knauss were adulterous relationships, per the direct declaration of Jesus as quoted in Matthew 19:9, and therefore would never characterize them as his partners in “holy matrimony”.)

      1. Are you confident Pres. Trump did not arrange an annulment, or purchase an indulgence, or something similar?

        Also, what makes you so sure Pres. Trump, fine man that he is, did not dump his first two wives for immorality?

        Carry on, clinger.

        1. Are you confident Pres. Trump did not arrange an annulment, or purchase an indulgence, or something similar?

          Well, yeah, pretty confident, given that a) Trump isn’t Catholic, and b) evangelicals don’t consider Catholic institutional gyrations as having any moral force.

          I mean, why don’t you say, “Are you confident Pres. Trump did not get a Get from a rabbinical court?” or “Are you confident Pres. Trump did not fulfill the forms of talaq as certified by an imam?” They’d be just as relevant to the evangelicals you’re trying (but in your blatant ignorance, utterly failing) to mock.

    4. Thank you Rev. for sticking it to the evangelicals.

      “What happens when Pres. Trump’s evangelical supporters learn that this man was fornicating with a fallen woman in breach of his marital vows?”
      Nothing. Nothing at all. Because the evangelicals know this already. Love the sin, and when necessary, pretend to hate the sinner, is the one true belief of the evangelical.

      1. I do not stick it to the evangelicals.

        They stick it to themselves. I merely chronicle the gullibility, backwardness, intolerance, and hypocrisy.

    5. If what Clinton did while he was president was unimpeachable, why is what Trump did before he was president impeachable?

      As Godliness is concerned, remember the parable of the prodigal son? God loves a sinner come to His understanding. Do you think it unChristian to forgive a sinner yet still hate the sin?

  6. So, serious legal question: Suppose that Trump actually didn’t know about the agreement, but it was entered into by somebody with his power of attorney? Would it then be binding?

    1. Even if he didn’t give his express authority at the time, he could always ratify his agent’s conduct at a later date. Typically, it is the principal that is trying to get out of a commitment by arguing that the agent did not have authority to bind him. I’ve never seen the reverse scenario where a party argues that a contract is invalid because the agent of the other party did not have proper authority to bind the other party.

      Stormy would never take the risk of filing this lawsuit if she didn’t have a big money sponsor that agreed to pay any resulting damages. Obviously since she is offering to give back the $130,000, there is a much better offer out there to pay her for her story.

      1. That’s what I figure. There are enormous sums out there on offer to anybody who has dirt on Trump.

        The problem for anybody trying to exploit the Stormy revelations is that they’re already baked in, nobody thought Trump was faithful in the first place.

        That’s why they’re trying to cast the agreement as a campaign expenditure, to make it a campaign finance violation.

        1. But Stormy, who has sex on camera for money, would be willing to give the most salacious details, whereas a normal woman that Trump had and affair with would actually worry about HER reputation. Those salacious details might move the needle. Might. And at that point, it wouldn’t matter if they were true or not (imagine her saying he has a small dick or that he’s a one pump chump) because what is he going to do in return to her?

          1. The better, more just result would be her release of a photograph addressing the ‘tiny fingers, tiny elsewhere’ issue. Or perhaps a watersports video?

            1. Well, there is at least one major news story that Trump is good in bed from long before his political ambitions.

              Former Penthouse Pet Sandra Taylor, who went on three dates with Trump decades ago, agrees with the famous Post headline, “The Best Sex I Ever Had.”

              1. She is contractually obligated to say that.

                1. That would be some solid gold shit right there, if you could get a woman to agree in a contract to being good in bed, regardless of the truth or not.

        2. That’s why they’re trying to cast the agreement as a campaign expenditure, to make it a campaign finance violation.

          Do you contend it was not a campaign expenditure?

        3. I can imagine her revealing things about the President that aren’t “baked in” to his supporters’ view of him.

          1. Not me. If John Q Voter was okay with Trump’s decades-long history of racial discrimination in his businesses, his multiple bankrupcies, his cheating thousands of students at Trump “University,” his routine screwing of hard-working middle-class businessmen who worked for him, his serial adultry, his pathological lying . . . why on EARTH do you think his opinion would be changed by anything Trump could possibly say or do?

            I can think of one, and only one thing. If Trump came out and said, “I was totally lying about being anti-abortion now. I was a lifelong supporter of a woman’s right to choose, right up till I decided to run for office. I, today, pledge to appoint, from this point forward, only judges and justices who are firmly pro-choice.”

            *That* would move the needle. But other than that (or maybe an equally unlikely 180-degree reversal on gun rights), he can say and do pretty much anything. His base is so deluded (you might call them “faithful” or “loyal”) that they will stick with him. Through thick or thin.

            1. A 180 turn on gun rights would make his supporters abandon him, as would caving on amnesty for the illegal aliens.

            2. “…why on EARTH do you think his opinion would be changed by anything Trump could possibly say or do?”

              I think there is at least Trump supporter who would respond negatively to him, say, peeing on women for sexual gratification.

              1. Does R Kelly still have the same number of fans, overall?

                1. I feel like I should get this reference. 🙁

                  Is R Kelly a thing/person that someone in his 50s should know?

                  1. santamonica811,

                    “Is R Kelly a thing/person that someone in his 50s should know?”

                    Should? It’s pop culture, so there is no ought.

                    Likely would? Yes. He was an R&B/soul singer in the 1990s who was extremely popular (“I believe I can fly. I believe I can touch the sky….”) and was “allegedly” featured in a pee tape. I believe there was some dispute as to whether it was actually him. It was pretty big news at the time.

                    1. I believe the major issue with R Kelly was the age of the girl he allegedly peed on.

              2. Anything outside of the Trump brand is just gonna be fake news.

                Between not caring and disbelieving, the tribe has proven quite immune to negatives facts about Trump.

            3. Perhaps the issue is not John Q die-hard Trump supporter, who is a minority of voters, but Jane Q marginal voter, one who could have help shift those 80,000 votes in three states that gave Trump the Electoral College win. My impression is that most national elections for years now have been directed at those margins, taking for granted the votes of the ‘base’ on both sides.

              1. He’s only gotten more polarizing and hated by the left, but he more popular with those “not sure about him” folks after the election. Polls indicate that given the choice at the time, they’d make the same choice to pull the lever for Trump again.

                And while I agree with you Sarcasto, only because of my experiences on various blogs during the primary, where if I pointed to the dumpster fire that was his campaign, that I must be a concern troll beta male. One idiot even said Trump released the “grab them by the pussy” tape on his own in some 4D chess move to suss out the fake supporters. As bad as the Obama drones fainting at rallies.

                The thing is, so much of what you likely view as negative, his supporters either don’t care about, or think is a positive.

                Take twitter. His shitposting and rants are beloved by his supporters. Go over to the_Donald on reddit and see what I mean. I bet dollars to donuts you think that they are unpresidential and do more harm than good to his cause. His supporters don’t see it that way, they see it as finially someone is punching back.

            4. Suppose Trump liked to be penetrated anally by a strap-on (aka “Peggy pegged him”). Would that move a substantial number of Trump voters?

    2. Depends on the terms of power of attorney. They can be as broad or narrow as the principal desires.

      General POAs usually have quite broad contract execution/litigation settlement provisions so generally the attorney in fact’s signing will bind the principal.

      No way to tell for sure without looking at the POA.

  7. I know, I know – who cares about that anymore? Such a silly old norm: “telling the truth.” Trump is, as we all now, a norm-disrupter, and he doesn’t have to do things like telling the truth. He didn’t have to “tell the truth” on The Apprentice, and look at the ratings he got there! But I’m going to continue to cling to the quaint notion that our public servants should tell us the truth.

    I’ve got to say, this norm is already so thoroughly disrupted as to be lying on the floor in tatters. Was long before Trump ever ran for President.

    Yes, our public servants should tell us the truth. Does anybody think they DO typically tell us the truth?

    I don’t know of anybody who voted for Trump under the illusion that he was a moral icon. We supported him because the alternative was more awful, and a decent candidate wasn’t on the ballot. Yes, that’s a horrible point for the country to have reached, but there’s no use pretending we haven’t reached it.

    1. To this, I would say that what’s fascinating about Trump, is that while we (and to some extent he) must know he’s lying about a lot, he’s also simultaneously the only politician to come along and tell the truth about a whole host of issues that everyone else was lying about through their teeth about.

      1. Way back when the excuse was made for (Bill) Clinton, that he might have lied about “private” matters, (For a very expansive definition of ‘private’.) this didn’t mean he wasn’t honest in public matters of governance.

        I thought that was a bad joke then, and I think it’s a bad joke now. Trump is a habitual liar, even if most of it is ‘just’ braggadocio. If he’s telling us the truth about anything, it’s because he thinks the truth more useful to him.

        1. True enough.

          The difficulty that some people, particularly David Post it seems, is dealing with the reality that the public 1) likes to be lied to about certain topics because the truth is uncomfortable
          2) truth telling won’t win you an election when it is not motivating

          Imagine the general manager of a baseball team that is down by 3 games in a best of 7 match. He knows, and the players know, and the press knows, and the fans know, that the odds that the team will come back and win the next 4 games in a row is very slight. What manager, at the press conference after the loss of game 3 will ever give a reasonable appraisal of the odds? However, since it has happened from time to time that teams have come back from a 3 game deficit, and he would like to be among them, he will either be ruthlessly positive minded rather than cynically pessimistic. If the team wins against the long odds, he is remembered for how he held the team together. If he loses, he is exposed as a liar, even if we all expected him to lie anyway, for if he was brutally honest about the long odds, the team would lose all morale and be sure to lose.

          This, my friends, is the inherent contradiction in human leadership.

          1. Not just human leadership. You know that they did some research into the self-image of depressed people, vs mentally healthy people?

            They went in assuming that the depressed people would have unrealistically negative self-perceptions. Wrong! The mentally healthy people had unrealistically positive ones, they all thought they were smarter, better looking, wealthier, and had better prospects, than was really true.

            The depressed people were remarkably objective about themselves.

            Evolution doesn’t select for objectivity. It selects for almost mindless optimism.

            1. Oh agreed. For example, every Olympic gold medal winner in Judo or wrestling goes in with the positive attitude that “they are ready for this” and going to win. Everyone who wins has that attitude, because thinking that you’d have to be lucky to win is a sure recipe for failure. Nobody wins the big prize while simultaneously thinking that they have little chance of winning….but then again, those who are ready to win must also know via logic that everyone else must think the same thing, that they are also ready to win, even though there is only one gold medal. So they must push that out of their mind, or assume that the opposition is wrong.

            2. BB: “Evolution doesn’t select for objectivity. It selects for almost mindless optimism.”

              And that is why everything is going to turn out wonderfully!

              1. Well, the guys that stayed in camp and never went on the raiding party/hunt/quest perhaps lived to see another day…and the ones that went on the raid/hunt/quest and got killed never passed on their genes…but the ones who were successful; now they got the girls.

      2. An inveterate liar is telling you things you want to be true. There may be danger signals in there for you.

      3. he’s also simultaneously the only politician to come along and tell the truth about a whole host of issues that everyone else was lying about through their teeth about.

        Example, please.

        1. bernard11,

          I was curious what mad_kalak possibly could have meant by that. But, unsurprisingly, your request is met with silence.

          1. I was busy from 5am till 8:30pm as an election site worker for a primary election yesterday (4/20/18), and the last thing I wanted to do after dealing with actual politics all day yesterday was pretend on the internet. Still, when called out, I feel I should reply.

            Granted, this is my subjective list, and the liberal or 100% free trader may disagree, but here you go:

            1) NAFTA was good for the average American
            2) Large numbers of Muslims from regressive countries with no vetting *might* be a problem, particularly to gays
            3) Janet Yellen and quantitative easing was a policy to help prop up the Obama presidency at the expense of longer term solutions to deal with the Great Recession
            4) America makes bad trade deals
            5) The diversity lottery system for immigration is not a good system that puts America’s actual labor needs first
            6) Rosie O’Donnel is a fat slob and a pig
            7) Female migrants enroute to America are raped by Mexican men during their voyage

            Is that good enough?

            1. No.

              1 and 4 seem to conflict, for starters, and 4 is, IMO just wrong, but in any case certainly not objectively true.

              2. No vetting? Might be? Anything “might be.” You might be a serial killer.

              3. False. Completely false.

              5. Pure opinion, and not well-grounded.

              6. Stupid, pointless insult.

              7. I suppose that has happened sometimes. What is the point?

              Hardly looks like bold, fearless truth-testing to me. Mostly typical Trump BS.

            2. mad_kalak,

              Definitely no.

              1. I presume you mean, instead, that “everyone” said NAFTA was good for the average American while Trump said it wasn’t. Bernie Sanders didn’t. Even Hillary Clinton called it “flawed.” I think Trump was wrong that NAFTA was horrible, but plenty of prominent politicians were saying NAFTA was a net loser for the average American. Hardly a “truth to power moment.”

              2. I am not aware of anyone who supported “no vetting” and no such thing was occurring. Not “truth to power”.

              3. This became Republican dogma almost simultaneously with Obama’s inauguration. I am not sure you could find a conspiracy theory that was more uniformly popular among Republicans, notwithstanding that, for the 60-70 years leading up to the 2008, they all supported quantitative easing in the circumstances during and after the Great Recession.

              4. Plenty of people criticized America’s trade deals prior to Trump. Trump’s position was that he would make better trade deals, better deals than anyone. I think you are going to find our whether there was any “truth” in Trump’s position as he is currently doing his best to set off the next recession/depression.

              5. Another position held by many prominent Republicans for many years, at least since 2002.

              6. You, like Trump, lack class.

              7. No one disagrees. Trump has claimed that immigrants are more likely to commit violent crimes. They aren’t.

    2. “quaint notion that our public servants should tell us the truth.””

      After “I did not have sex with that woman, Miss Lewinsky” anyone who says this is lying himself, either to deceive others or himself.

      1. Bill Clinton’s lying was a big deal. Paralyzed his Presidency for two years.

        Trump’s lying has become like a feature.

        1. Bob, I think you are the one deceiving yourself. Trump is not normal. His lying is not normal. Republicans’ excusing of the lying is not normal.

      2. The fact that that lie was such a big deal really gives the, er, lie to your sudden conversion on the road to Decepticus.

  8. You are certainly correct that unless the statute of frauds applies, a party does not have to sign the agreement. However, where the contract had a signature space, you can certainly argue that it was intended that the parties’ signature was their way of showing intent to be bound.

    Note that the failure of Trump to sign the agreement was not because he did not have time and thus overlooked it. This can be seen because on page 15, where there was space for the attorneys to sign “as to form,” his attorney, did not sign it on behalf of Trump, but did sign on behalf of Essential Consultants. As such, there was a clear desire by Trump to leave open the possibility that he could later claim not to have entered into the agreement.

    Note that under section 6 of the agreement, Trump released Daniels for any matters prior to execution of the release. Under these facts, it Trump sued Daniels for something that occurred prior to when they negotiated the release, I do not think that Court’s would say that she received a valid release. As such, there is no valid agreement, notwithstanding that she received the $130,000.00.

    1. Avenatti’s lawsuit asserts that it was understood that the agreement would not be valid unless it was signed by all parties. This might be important, given the role that Gina Rodriguez (Daniel’s manager) and Keith Davidson (Daniel’s original lawyer) played. If they testify that there was such an understanding, won’t that be relevant?

    2. It is an integrated written contract. Also, 8.7 requires at least one party to sign, so it is more likely that at least two parties have to sign for there to be an agreement.
      The language re the parties have read does have some import. In some states, such a provision is given wight and may not be denied absent strong corroborating evidence (like the party can’t read or can’t read the language of the contract, etc. Not free just to deny reading.

  9. The fact that the arbitrator signed the “temporary restraining order” was rather outrageous. Even if the contract is valid, section 5.2 indicates that disputes between DD and PP are subject to arbitration. It says nothing about disputes between EC and PP. Even if there is a binding agreement with DD, the fact remains that the Demand for Arbitration exclusively indicates it was made on behalf of EC. The “temporary restraining order” makes clear that the only claimant is EC and not DD.

    1. there are about a zillion problems with the “TRO”.

      Avenatti says that the “TRO” was obtained in secret. And while the arbitration agreement itself permits “secret” arbitration, neither the law, nor the rules of the company contracted to do the arbitration, permit this secrecy.

      First, under california law, if an attorney wants to act as an out-of-state attorney in an arbitration case, he must notify ALL parties (including the arbitrator, and the respondent). (CCP 1282.4). In the request for emergency arbitration dated 2/22, Jill Martin (the attorney of record) notes that Lawrence Rosen is “undertaking the process to appear as Out-Of-State Attorney”. The “TRO” was not issued until 2/27.

      Secondly, under the rules of ADR (the arbitration company) in cases where “emergency provisional relief” is requested, an arbitrator has to be appointed within two days, and that arbitrator is required to provide notice to all parties within 2 business days of being appointed. (see ADR rule 24) SInce the TRO came five days after the original application, there was more than enough time to provide notice.

  10. To comply with this provision, presumably Daniels must say “No” when asked “Did you enter into a settlement agreement with Mr. Trump?”

    I say “no” to this assertions that she must lie. And I quote from my security clearance briefing; “I can neither confirm nor deny the existence of (insert item here).” You are not lying with that response. You would be complying with your security restrictions, or her contractual obligations.

    1. Would you be permitted to say, “I am legally barred from giving an honest reply to that question.” Or, “I am legally prevented from truthfully answering that question.”

      (I am assuming that you could not say, “I have signed a confidentially agreement that bars me from giving an honest reply to that question.”, given the wording of the agreement, yes?)

  11. I would ask David Post to do a search on the phrase “Ma ma, where’s my pa? Gone to the White House, ha ha ha!” if he thinks this whole situation is unprecedented in some way.

    1. I’m not understanding your point. Are you commenting about the fact that media have a long history of reporting on false allegations as part of the political process? About the fact that politicians have forever been willing to lie about other politicians, including really ugly lies?

      Or something else? (genuine question)

      1. I just mean to say, that Post seems genuinely disheartened such standards of comity have been violated in the political arena regarding sex and politics. This case with Trump and Stormy is virtually identical to Present Grover Cleveland’s (which may or may not have been true) situation with a woman claiming he fathered her child out of wedlock. If you’re willing to go back even further, it’s almost the same as the Jefferson’s and the allegations (proven to be true) that he was sleeping with Sally Hemmings.

        1. Or Jack Kennedy sleeping with other women including Marilyn Monroe?

    2. Not relevant at all. There was never any allegation that Garfield was an adulterer. Even if we assume that Maria Halpin’s son was indeed his, so what? Neither he nor Halpin were married at the time.

      1. Moving the goalposts.

  12. “And where, by the way, are the zealous guardians of the public morality heretofore so vocal in the Republican Party? Can you imagine – I mean really, can you actually imagine?! – what their reaction would have been had they discovered that Barack Obama had had an extramarital affair with a porn star and paid her $130,000, two weeks before the 2008 election, to keep quiet about it?! The silence on the part of the Republicans here is deafening. I suppose there are, historically speaking, more egregious examples of mass hypocrisy on this scale – but not many.”

    David, I don’t think you can call someone “hypocritical” based on the responses you have imagined them giving in a scenario that didn’t happen. The word you’re looking for is “hypothetical.”

  13. What is hypocritical is silence on the parts of many Democrats to this:

    Washington Post: Bill Clinton Rape Accuser’s Story Aired


    Quote:
    Juanita Broaddrick told her story to a national television audience last night, saying she did not tell authorities 21 years ago of her contention that Bill Clinton sexually assaulted her because “I just don’t think anyone would have believed me.”

    In a gripping account punctuated by sobs, the Arkansas woman told “Dateline NBC” that in her Little Rock hotel room, Clinton suddenly “turned me around and started kissing me, and that was a real shock. I first pushed him away. I just told him ‘no.’ . . . He tries to kiss me again. He starts biting on my lip. . . . And then he forced me down on the bed. I just was very frightened. I tried to get away from him. I told him ‘no.’ . . . He wouldn’t listen to me.”

    1. Or the two Republican house impeachment managers who interviewed her but didn’t pursue the allegations.

      1. Probably because she had repeatedly sworn under oath that nothing happened, making her… not a good witness.

    2. What’s hypocritical is pretending to care about this when you’re cynically brandishing it to cover for Trump, a man who has been accused multiple times of sexual assault.

  14. Arbitrators issue orders all the time, i.e., documents captioned “Order” directing parties to do something. I know law professors get used to the unaccountable power to make things up, but what works on ignorant students won’t work on actual practicing lawyers.

    1. +1

  15. “Such a silly old norm: “telling the truth.”

    That word “norm” does not mean what you think it means.

    1. I thought he was talking about silly old Norm (short for Norman) 😉

    2. It’s literally one of the ten commandments.

  16. David Post, we tried to find out about President Obama’s past but his college records were sealed, his appearances honoring Anti- Semites were suppressed by a major American newspaper. But he admitted to being a drug user and dealer, thereby admitting to much worse offenses than any alleged affair. As noted above, Oresident Clinton lied to a grand jury!!!!! as well as sexually harassed his intern in the Oval Office and his employee Paula Jones in a hotel room.

    1. But he admitted to being a drug user and dealer, thereby admitting to much worse offenses than any alleged affair

      Says who, other than an old-timey, authoritarian yahoo?

      Drug warriors are always jerks. Being a nanny-state anti-doobie crusader is perhaps the most reliable signal a jerk emits.

      Carry on, clingers.

    2. Why is selling or using drugs worse than cheating on your wife?

      1. I’m surprised that even a half-educated, backwater, old-timey Republican would advance that position.

        Let alone a “libertarian.” At a “libertarian” site. To try to persuade a “libertarian” audience.

        Carry on, clingers.

        1. Depends on what kind of drugs…and not all libertarians support across the board drug legalization…but feel free to keep stereotyping.

          1. Please tell us more about “Libertarians For Drug Warriors.”

            Maybe add similar information about “Libertarians For Government Micromanagement Of Abortion Clinics,” “Libertarians For Government Discrimination Against Gays,” “Libertarians For Torture,” “Libertarians For Censorship On (Certain) Campuses,” “Libertarians For Criminalization Of Contraception,” “Libertarians For Massive Military Spending,” “Libertarians For Prayer In Public Schools,” “Libertarians For Race-Based Voter Suppression,” and the like.

            1. Excellent straw-maning. Seriously though, the problem with libertarians in real life, is that they constantly try to one up each other as to who is a “real libertarian.” For instance, I believe that we should audit the federal reserve, but I’m not a real libertarian unless I am for abolishing it completely. If I am for legalizing marijuana, a “real libertarian” will pipe up and say that “all drug laws have to go, and if you don’t support that, you’re a fascist.” In a sad way, it’s the same as liberals who might say that they are for equal rights for women, but unless they say “smash the patriarchy” they are not true feminists.

              For an explanation of this phenomenon, please skip to minute 33:05 of this Ruben Report interview of famous libertarian Prof. Mike Munger. Takes about 5 minutes to listen to the appropriate section.

    3. but his college records were sealed,

      This is language used to fool the rubes. His college records are not “sealed.” They are private like every single other American’s, but they are not sealed.

    4. Everyone’s college records are “sealed.” Schools can’t release transcripts without permission from the student.

  17. But I’m going to continue to cling to the quaint notion that our public servants should tell us the truth.

    Mm-hmm. And how, exactly, did this clinging of yours manifest itself in action after Bill Clinton first committed perjury and then directly lied to the American people to cover up an affair?

    1. I believe there was some controversy surrounding the whole affair. Republicans in particular were quite perturbed to a high degree.

      1. I didn’t ask what the actions of random members of the public were, but those of Mr. Post, whom I think we can agree is certainly not of your category “Republicans in particular”. He’s the one asserting that he clings to the notion that our public servants should tell us the truth, after all.

        1. And the current drive seems to be of Republicans demanding that everybody stop wanting public servants to tell the truth, which is a bit of a turnabout unless Republicans actually never cared about truth at all and now feel they can stop pretending and want everyone else to join them in their amoral ethical hellscape.

  18. But he didn’t insist he made it out of his own pocket. He said he used his own money to facilitate the payment. That’s compatible with him paying to make copies or mail the check.

  19. I don’t think this is enforceable, but the “This amounts to a contractual obligation on Daniels’ part (though not on Trump’s) to lie.” is nonsensical. Confidentiality agreements/NDAs are signed every day in thousands of different contexts. Nobody would spin that in any other context as an “obligation to lie.” Rather, it’s an obligation to shut up.

    Pursuant to the agreement, she is not obligated to falsely say “No, there is no agreement.” She can truthfully say, “No comment.”

    1. The contract does, however, require Daniels to stay silent in the face of slander or libel by Cohen and/or Trump and his representatives. When someone accuses you of something, and your entire response is “no comment”, it acts as confirmation of the false accusation.

      When Sarah Sanders, acting on behalf of Trump, says that there was no affair, she is calling Stormy Daniels a liar, because in 2011 she told In Touch magazine about the affair. Because Trump agreed not to hold Daniels liable for anything she’d said prior to the agreement, there is an implied obligation on Trump’s part not to FALSELY deny things she said earlier.

      1. Interesting point.

      2. The contract does, however, require Daniels to stay silent in the face of slander or libel by Cohen and/or Trump and his representatives.

        It doesn’t require Daniels not to sue Cohen/Trump for slander or libel if they engage in it.

  20. “But I’m going to continue to cling to the quaint notion that our public servants should tell us the truth.”

    Oh, man, are YOU living in the distant past! That ship sailed long, long ago – before Obama told us “if you like your plan, you can keep your plan”, before Bill Clinton told us that his tribute of oil to North Korea would keep that country nuclear-free, even before Richard Nixon went on TV to proclaim “I am not a crook!” At least in this current case, Trump’s dishonesty is certainly no worse than Bill Clinton’s “I did not have sex with that woman!”, and Trump wasn’t even testifying under oath. Expecting honesty from politicians of any strip is akin to truly believing that that Nigerian Prince is really going to send you millions of dollars if you only email him your Social Security number and bank account information.

    1. It’s funny how those lies, if they were all lies because you are defending a liar so who knows what that makes you, exercised Republicans so much, and now lies don;t matter at all. You’ve literally sacrificed honesty as a value.

      1. Whatever you have been smoking, you need to stop. It has destroyed your ability to communicate.

        1. I would suggest he never had an ability to communicate.

        2. Or this new political ideal of ‘Lying Is Okay Now!’ has destroyed your reading comprehension skills.

  21. RE: Donald Trump vs Stormy Daniels

    Are the American people really gonna listen to an angry aging blond with huge sagging tits?

    Or, will the American people listen to Stormy Daniels, instead?

    1. [rimshot]

  22. Michael Cohen spoke for an article in Vanity Fair, which was posted today. After reading it, I’m more certain that there is no claim against Stormy Daniels.

    Cohen did not argue that Trump is a party to the agreement. Rather, he claimed “the agreement is a two-party contract between the L.L.C. ? [and Daniels], which would deem a signature from anyone else unnecessary to execute the agreement.”

    Besides for the fact that the contract clearly is not a two-party contract, there are no damages. EC LLC suffers no damages from Daniels’ breach; only Trump was damaged. The fact that there a liquidated damages clause doesn’t help, because a liquidated damages clause is not valid unless there would be real damages.

    1. no one who reads the contract would buy Cohen’s argument, because EC’s role is so limited, and “DD”s role is so expansive, and at NO POINT is EC authorized to act as an agent of DD. “and/or” is at best ambiguous, and that ambiguity is resolved by the actual text of the agreement, which confers both OBLIGATIONS and PRIVILEGES on DD throughout the agreement, while the sole obligation of EC is to send money to Daniels lawyer. EC is conferred ZERO privileges in the document itself.

      1. IIRC NDAs are quite common when an employer is getting rid of an employee, using compensation, instead of firing them.

  23. An unsigned agreement that has been substantially fulfilled – she took the money and identified the people she had told – is probably at least partially valid as an oral agreement.

    However, because an arbitration agreement must be in writing, the lack of signatures may very well invalidate the arbitration clause. And depending on state law, other parts might be invalid as well.

    So I suspect the matter will be decided in court after all. But the judge might end up upholding enough of the agreement that Stormy Daniels may well end up owing damages. Nonetheless, the fame it has given her might still make breaking the agreement a good business decision for her.

    1. Usually, only the party being charged with an obligation must actually sign the agreement. So if the LLC is willing to participate in arbitration, it doesn’t matter whether or not it signed the agreement. She did, making it enforceable against her.

  24. I don’t think there’s a serious constitutional argument. Nondisclosure agreements happen in business all the time. the activities here didn’t occur as president. I don’t think becoming a public official automatically invalidates every confidentiality agreement previously signed.

    Once upon a time, an argument might have been made that this was a meretricious contract – that what’s going on here is a thinly disguised way of paying for sex. But I suspect that argument may not carry much weight any more. And if one doesn’t make that argument, then it’s a business agreement like any other. There’s nothing the least bit unconstitutional about enforcing it.

    1. Agreed. But a $10M penalty clause would be unenforceable under just about any state’s law.

    2. Reader Y, re: I don’t think becoming a public official automatically invalidates every confidentiality agreement previously signed . . . There’s nothing the least bit unconstitutional about enforcing it.

      That seems equivalent to suggesting courts can enforce non-publication of newsworthy information about the President, if he had the foresight prior to his election to screen the info with a confidentiality agreement. Aren’t there at least points on both sides of that argument?

      1. Well, you tell us: what do you think the points are in favor of non-enforcement?

        Note that “enforcement” in this context likely means post-publication damages, not injunctive relief (although that is not 100% settled).

  25. Of course, parts of the agreement, such as a perpetual nondisoaragement clause, might be unenforceable.

    And if she can break the arbitration agreement – and for the reasons noted above I suspect she can – then not only will she be able to depose Mr. Trump, but Mr. Trump’s attempts to enforce the agreement will have to be public and will very likely result in a Streisand Effect.

    1. As has been noted elsewhere, she need not break the arbitration agreement to depose Trump. Depositions happen in arbitration all the time.

      The only real difference is that courts have public filings; arbitrations generally do not.

  26. “But I’m going to continue to cling to the quaint notion that our public servants should tell us the truth.”

    That’s not quaint, it’s delusional. Evidence is rather lacking that any of our public servants have ever told us the truth.

    1. No. It would be delusional to insist that public servants do always tell the truth. It is not in the least bit delusional to suggest that mostly, they should.

      Noting the distinction is worth doing, because without it you arrive in the degraded condition where public officials lie with impunity, and public norms support applauding them anyway. Trump supporters are doing that now.

      1. Slight correction: Obama and Clinton supporters are doing that now and in the past!

        1. Obama and Clinton supporters defended Obama and Clinton, I don’t think they enthusiastically embraced the nihilistic cynicism of the idea that ‘lying is ok now so here’s a bulk order.’

      2. “because without it you arrive in the degraded condition where public officials lie with impunity, and public norms support applauding them anyway.”

        Arrive in? That’s funny. Politicians have always lied and there is little evidence that they have ever suffered any political consequences for doing so.

        Would the world be a better place if politicians told the truth? Sure. However pretending that there is a “norm” that no one follows and can’t be enforced is still delusional and / or wishful thinking.

        1. “Arrive in?”

          Yes.

          “Politicians have always lied…”

          okay

          “… and there is little evidence that they have ever suffered any political consequences for doing so.”

          Well, Clinton was impeached for lying under oath. George H.W. Bush likely lost re-election because of breaking his pledge (i.e., having broken his word, which is to say lied) about “no new taxes”. And those are just two recent examples. And generally telling the truth is quite definitely a norm that is honored more often than it isn’t. That’s why politicians will often speak in vague generalities or will say things that are technically true but misleading (and they often fail in being technically true), because an outright lie will have consequences.

          Of course, often politicians get away with lying with no real consequences, but that hardly justifies your apparent stance that lying has never mattered and doesn’t matter, that Trump’s daily lies are normal. Trump’s lies are not normal, either in type or volume. If you pretend otherwise, you are part of the problem.

          “a ‘norm’ that no one follows”

          Untrue.

          Not just politicians, but people lie. Very nearly everyone has. But the norm is to tell the truth. You have surely known, however, someone for whom lying tends to be the norm. Presumably, you don’t trust them and wouldn’t put them in a position with any power over your life. Why is the abnormally untruthful Trump entitled to your shoulder shrug? You are part of the problem.

          1. “George H.W. Bush likely lost re-election because of breaking his pledge (i.e., having broken his word, which is to say lied) about “no new taxes”. ”

            And a lot of other things, besides. He basically ran on being Reagan’s third term, and then turned into a typical RINO the moment he was himself President.

            For instance, Reagan had reined in the BATF. Bush unleashed them again, resulting in both Ruby Ridge and Waco, and a lot of less bloody incidents of the same sort.

            Yes, politicians suffer consequences all the time for getting caught lying about what they’ll do in office. Not so often for getting caught lying about other things.

            1. The Waco siege happened while Clinton was president.

            2. “politicians suffer consequences all the time for getting caught lying about what they’ll do in office. Not so often for getting caught lying about other things.”

              I disagree. There is a reason most people and most politicians do not lie about easily verifiable facts: Lying about such things kills your credibility. Because most politicians do not lie about easily verifiable facts, but almost always overpromise and underdeliver, I think you have it backwards regarding what they get punished for at the polls.

              At least, that is pretty obviously the calculation politicians make: Lie about the future because voters will forget and/or you can always blame someone else for utopia not coming about. But don’t lie about easily verifiable facts, because then nobody will believe your lies about how you’ll make X great again. But if you, Brett, suddenly decide that you won’t base credibility determinations on people’s propensity to lie about even easily verifiable facts, everything devolves even more into a contest of personalities, tribalism, and easily manipulable emotions. That is an electorate that frightens me.

              Giving up on holding politicians accountable for lying to you is the path to authoritarianism, Putin-style.

  27. Here’s a thought. Is it possible that “David Dennison” was Melania Trump rather than Donald?

  28. My personal bet given the inclusion of family in the contract is that it was a threesome with Melania. Which if you think about it would make Daniels’ handling of the entire situation pure genius

    1. Except that this tryst [supposedly] occurred soon after Melania had given birth. So the chances that she was participating in a threesome seems pretty remote.

  29. Two assertions in this article are so bogus on their face that I’m astounded to see them here.

    One is that the agreement requires Daniels to lie. It does not. It merely requires her to keep silent about certain facts unless compelled by the law to answer questions about them. Similar restrictions in contracts were upheld against tobacco executives who wanted to tell all to 60 Minutes; I see no reason why they would, or should, fail to be upheld here.

    The second, which SCOTUS itself seems to have perpetrated in that 1948 case, is the notion that it’s unconstitutional for government to enforce a contract provision which, if government had imposed it as a law, would have been unconstitutional. This non sequitur, if consistently upheld, would shut down every moderated speech forum in the country. It completely ignores the voluntary nature of contracts, a fact which is morally all-important.

    1. Under your construction, Daniel’s would be forced to remain silent (or say “no comment”) even in the face of the most egregious slander by Cohen and/or Trump concerning their relationship. And “no comment” in the face of an outrageously slanderous accusation has the same effect as confirming it.

      Thus, while technically she is not forced to lie, effectively she is not permitted to deny false accusations, which is pretty much the same thing as being forced to lie about them, given that people assume that the lack of a denial is confirmation.

      1. People are free to assume what they want, the contract didn’t presume to bind third parties. The point remains that she could comply with the agreement without lying.

        1. you cannot interpret a contract in a way that is absurd, and it is absurd to assume that Daniels agreed to allow Cohen or Trump to slander/libel her.

  30. Generally, VC is pretty accurate but I have to differ on the issue about the TRO. While I am not familiar with the JAMS rules, I am familiar with the rules of the American Arbitration Association (indeed, I am an arbitrator) and they clearly allow for preliminary relief including the equivalent of injunctive relief. While I personally would not have called it a TRO (the preferred nomenclature is “Preliminary Order”), if this is just a quibble about the title of the document it is not really worth the discussion given to it.

  31. I’m confused.

    Post argues that the statute of frauds argument is irrelevant, while noting that contracts regarding copyrights, and contracts involving the transfer of goods worth more than $500, are both instances where the statute of fraud applies.

    Under the contract, Daniels agrees to transfer “all tangible property” relating to the affair to Trump. The payment of $130K is not just for Daniels’s silence, but for “goods”. And Daniels also agrees to transfer all “physical and intellectual property rights” to this stuff — including specifically “copyrights”.

    So it seems to me that the statute of frauds argument would apply here…am I missing something?

    1. Yes, but there is a writing regarding those obligations. Plus, there has been performance, which generally means the SoF no longer applies.

      Besides, in general, the writing must be signed by the party responsible for taking action. So, if you say I agreed to sell you $500 of widgets, you need to show something I signed to compel me to actually sell them (or collect damages). In this case, she’s not claiming that Trump (or the LLC that is a party to the contract) needs to pay her for silence. She’s saying that she shouldn’t be bound because the other side didn’t sign the agreement.

      And of course, I don’t think any of this matters since the LLC could contract for Daniels’ silence. Trump would possibly be a third-party beneficiary and have standing to enforce it. But there’s no obligation that he actually sign it.

      1. IMHO, there was an obligation that Trump sign it, because one of the conditions of the agreement is that Trump is not allowed to sue Daniels for statements made prior to the agreement.

        Consider this hypothetical..

        Lets assume that there is no NDA that (as Trump claims) Daniels is LYING about the affair, and lied to In Touch magazine when she gave them that interview in 2011. Once that interview is published, Trump has grounds to sue Daniels for defamation/slander/libel, and has a strong case considering that the accusation was about an affair while Melania was recovering from childbirth.

        THE NDA commits Trump to not sue under those circumstances (see section 4.3(b) of the agreement) — and absent explicit permission from Trump to forego that option, EC LLC was not in a position to provide Daniels that she was safe from such a lawsuit.

        Anyone who reads the contract has to conclude that it was an agreement between Trump and Daniels, and that EC’s role was to serve as a “cut out” to prevent the fund transfer from Trump to Daniels (and to function as a mail drop for any subsequent communications.) At NO POINT in the contract is EC identified as representing or acting on behalf of Trump — and keep in mind that it was a two week old shell company at the time the contract was signed.

      2. IMHO, there was an obligation that Trump sign it, because one of the conditions of the agreement is that Trump is not allowed to sue Daniels for statements made prior to the agreement.

        Consider this hypothetical..

        Lets assume that there is no NDA that (as Trump claims) Daniels is LYING about the affair, and lied to In Touch magazine when she gave them that interview in 2011. Once that interview is published, Trump has grounds to sue Daniels for defamation/slander/libel, and has a strong case considering that the accusation was about an affair while Melania was recovering from childbirth.

        THE NDA commits Trump to not sue under those circumstances (see section 4.3(b) of the agreement) — and absent explicit permission from Trump to forego that option, EC LLC was not in a position to provide Daniels that she was safe from such a lawsuit.

        Anyone who reads the contract has to conclude that it was an agreement between Trump and Daniels, and that EC’s role was to serve as a “cut out” to prevent the fund transfer from Trump to Daniels (and to function as a mail drop for any subsequent communications.) At NO POINT in the contract is EC identified as representing or acting on behalf of Trump — and keep in mind that it was a two week old shell company at the time the contract was signed.

        1. So what? Parties can enter agreements without signing them. As noted in the original post, only some agreements need to be in writing/executed. Maybe Trump sued her, she would have argued that he was barred from doing so, and he would have claimed he never agreed (as shown by his lack of a signature).

          That EC LLC doesn’t identify its role in the transaction is of no importance.

  32. This is a surprisingly mis/un/ill-informed article for the Volokh Conspiracy.

    That appears to be a pretty strong confidentiality agreement. A $130,000.00 check is not a “gun pointed at your head.” Not acknowledging existence does not equate to mendacious denial. & so on.

    1. IOW typical for Post or Somin?

    2. It was a confidentiality agreement between Daniels and Trump, that imposed specific burdens on Trump in addition to providing funds. ABSENT A SIGNATURE affirming Trump’s acceptance of his obligations under the contract, the transfer of funds is irrelevant.

      EC LLC was a two week old shell company with two functions — to hide the source of the $130,000, and to act as a mail drop so that mail didn’t have to be addressed to Trump at Trump Tower. That’s is the entirety of EC’s role under the NDA, and at no point is EC LLC identified as acting as agent for Trump. Under the actual text of the NDA (have you actually read it?), EC LLC was contracting NOTHING from Daniels whatsoever.

      1. What are you talking about? First, the agreement didn’t impose burdens on Trump. He’s not a party to the agreement. It was EC LLC that contracted to make the payment. If it didn’t, Daniels would have a claim against the LLC, not Trump. Maybe Trump funded the entity, but that’s irrelevant. You start a company and provide it seed capital, it doesn’t make you a party to its contracts.

        Second, whether or not EC LLC was a shell or just two weeks old is irrelevant. Companies can be formed for any purpose. Companies use shells all the time. Virtually any major deal will have several layers of corporate structures. Doesn’t affect those companies’ ability to enter into contracts or be bound.

        Also, whether or not Daniels’ promise was of much value to EC LLC is also irrelevant. It can contract for things that we consider to provide it with no value.

        1. Edit – I went back and looked. He is a party to the agreement. My mistake. But, as I noted above, that he didn’t sign it doesn’t mean he can’t be bound by its terms (since not all agreements need to be in writing/executed).

  33. The only persons who can enforce this agreement are DD and PP. So, for Trump’s lawyers to obtain either a restraining order or damages, DD has to be a party to this agreement (ie. Trump). This is clear from the remedies section. No remedies are specified for EC, just for DD.

    If I were the arbitrator, I would not have issued the TRO unless Trump signed or acknowledged he was bound by the agreement. (Putting aside the first amendment issue re non-disparagement clauses).

    1. DD is almost certainly a Trump, but I don’t think we can be so sure about which Trump.

      I can see Melania being pissed at Donald over the affair while still not wanting her family’s dirty laundry aired in public. DD could be Melania rather than Donald.

      1. “DD could be Melania rather than Donald.”

        Did you know that the word “gullible” isn’t in the dictionary?

      2. wrong. There is a side letter in which PP, DD, and EC are identified as Daniels, Trump, and Essential Consultant LLC.

  34. Many commenters have said that this agreement is a violation of campaign finance laws.

    Can this contract be declared void because it is illegal and would incentivize others to violate the law?

    1. The agreement itself does not violate campaign finance laws. The violation of finance laws is related to non-disclosure of the campaign donation, non-disclosure of the campaign expenditure, and a contribution in excess of the legal limit (unless Trump himself was the source of the funds).

  35. Trump had an affair. Gosh, I guess I’ll have to vote for open borders now.

  36. Re your Update: The link does not work.


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    The webpage cannot be found.

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