The Volokh Conspiracy

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One More Word About The Stormy Daniels Affair

Trump's denials of involvement in the Stormy Daniels arrangements may turn out badly for him


About a month ago, in an essay [here] devoted to an analysis of the Non-Disclosure Agreement that has been at the center of the dispute between President Trump and Stormy Daniels (aka Stephanie Clifford), I remarked that Trump and his attorney, Michael Cohen, faced a conundrum: If they continued to deny that Trump knew anything at all about the Agreement (or the payment made to Daniels pursuant to the Agreement), they risked its invalidation, because Trump is (via a pseudonym) a party to the supposed contract, and parties to a binding contract must, as a near-universal rule, know that they are entering into a contract for there to be one.

But I missed a much more interesting, and important, legal problem entanglement embedded in the denials. I'm no expert on the precise scope of the attorney-client privilege, but I do know this: If a lawyer whom I have hired in the past to represent me in connection with various matters (and whom I expect to hire again in the future) goes off, on his own, without my knowledge or participation, and negotiates a contract with a third-party to which he later claims I am a party and in which he makes various representations on my behalf … that doesn't sound to me like a matter to which the attorney-client privilege applies. And that, of course, could become a matter of some significance, given the recent searches of Mr. Cohen's offices and residences. [Nor is it the only possible reason why Cohen's papers relating to the Daniels affair might be outside the privilege; if there is evidence that the arrangements were designed to violate, say, federal election law restrictions on campaign contributions, the well-known "crime-fraud exception" would render those papers outside the privilege as well]

Oh, what a tangled web we weave!

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  1. OTOH, she apparently took the money, which again almost universally, would obligate her to deliver on her end of the contract. And aside from the payment, the contract only obligates his side to refrain from actions Trump has, in fact, refrained from.

    1. Presumably the implementation of the contract for secrecy, (is the full text even available?) would obligate both parties to deny that a contract even exists, just as Trump is doing. Just don't deny under oath; ask Nixon or Clinton how that worked out for them.

      The enforceable obligation to honor the contract for which consideration has been received by Ms. Daniels, is limited only by the willingness of the other party to press the matter in court, with inherent unintended publicity. At present, Trump's best remedy is to take her down socially, financially, and with threat of physical harm, exercised by others with whom his relationship offers plausible deniability.

      1. "Presumably the implementation of the contract for secrecy, (is the full text even available?)"

        The contract was attached to the complaint when Ms. Clifford's attorney filed suit, seeking a declaration that the purported contract was never completely formed and is thus invalid.

        NDAs do not, as a rule, require that parties deny that a contract exists, and in a case where both parties denied that a contract existed, it would be unenforceable. In any case, Trump attempted to invoke the mandatory arbitration clause of the contract, and claimed to have already won in arbitration.

        What they do require is that parties do not discuss the agreement publicly. You can decline to talk about something without denying that it exists.

        1. If New York cops can refuse to confirm or deny records exist, why not a citizen of New York State as well?

        2. And actually, in context, admitting the contract exists while declining to discuss its terms is exactly what Trump has to do in order not to breach the contract while contending that Daniels has in fact done so.

          Someday, some high poobah in Washington will learn the simple lesson: it's always the cover-up that gets you. So, if you can't keep your pants zipped and refrain from conduct unbecoming, accept the fact that when the shit hits the fan the only rational course is to admit the truth. Now there is nothing for the slobbering hound dog press to chase, and the world can move on. You will look slimy, but no big deal because it will all make you look slimy anyway so nothing is lost except maybe your marriage, but I expect that the damage with Melania has already been done.

          1. "admitting the contract exists while declining to discuss its terms is exactly what Trump has to do in order not to breach the contract"

            Then sending out the White House Press Secretary to brag that the case already went to arbitration, and "we" won, is not the correct option?

    2. It doesn't matter if Trump just happened to have abided by the terms of the deal, if he was never aware of the deal he never agreed to the deal. And if he never agreed to the deal then he's not bound by it. And if one of the parties didn't agree to the deal there is no deal.

      As for the payment that's certainly relevant, but Cohen might not have been pursuing a perfectly valid NDA as much as a close-enough NDA that would shut up Daniels until they got through the campaign.

      1. That's not how NDAs work. They do not bind both parties or any and all parties knowledgeable of the information. The non disclosure can be a single party or all parties. You can even pay for someone's story and not tell it such as the National Enquirer did with other Trump conquests. Trump had zero obligations on the NDA. Story was the one who had an actionable agreement to remain silent in exchange for money, not Trump.

        1. Just ... stop Jesse.

          This is beneath your standards, which I would have thought impossible.

          I know that you're contorting yourself into a pretzel to defend Trump, but trying to invent NOVEL and UNPRECEDENTED contract law to defend the Prevaricator in Chief isn't a good luck.

          1. Look, you have to sign an NDA at our front desk to even enter the plant beyond the lobby. (Unless you're an employee, in which case you signed it when you were hired.)

            There's no place on the form for anybody but the visitor to sign, and it doesn't obligate anybody but the visitor. And it's a perfectly standard NDA, I've signed plenty of them on trips to visit customers' or vendors' plants.

            If there was anything unusual about Stormy's NDA, it's that she actually got paid. Most NDAs are signed by people who get no compensation beyond being permitted to walk beyond a door.

            1. But the NDA at issue included action items for Trump. It is obviously possible to have a contract where on person gets only money (or only the privilege of entering a facility) and the other gets an assurance that secrets won't be shared, however, that isn't this contract. The NDA at issue includes several obligations on the part of Trump in addition to the money. Neither you nor Jesse get to decide, retroactively, which parts of the contract were essential to Stormy in deciding to accept the bargain and, consequently, which parts had to be legally binding on Trump in order for the contract to be valid.

              (The fact that Trump happened not to do certain things doesn't mean Stormy has received legal consideration when, allegedly, Trump had no knowledge of the contract and, so, had no and has no legal obligation to refrain from certain conduct. Also, the obligations, like the secrecy obligation, were written to last in perpetuity. Stormy didn't get her full consideration because Trump, allegedly, wasn't legally obligated to do or refrain from doing anything and the contract is based on her getting that consideration.)

              Besides all of that, there could be fraud in the inducement and fraud in the factum to the extent Cohen represented in the contract and otherwise that Trump was a party to the contract and had certain obligations if, in fact, Trump was not and did not.

              1. Like NOVA says, it depends on the particular contract. Reference to the limited terms of other contracts isn't terribly informative. This contract included a number of promises by both sides.

                We can strain to draw an analogy where your customer's desk clerk lets you in after hours without knowledge or consent of the employer (ie something the employer has allowed by rule or practice), and the clerk has you sign the NDA. I would say that is a binding NDA because knowledge/consent is imputed by the act of the agent, and importantly the employer (acting through the agent) has fulfilled the terms of the agreement by allowing entry. This assumes you are acting in good faith and not merely trespassing/engaged in theft of trade secrets.

                The analogy doesn't hold up. It's absurd that Cohen, acting on his own and without consultation, can bind Trump for obligations to be performed. Even the money supposedly came out of Cohen's pocket. A putative party to a contract cannot opt to be ignorant of contracts and yet be bound. The most favorable facts for upholding the contract are as between Cohen and Daniels with Trump as a third party beneficiary. However, since the contract is built around obligations by Trump, that doesn't hold water. If a court were to hold it a valid NDA between Cohen and Daniels ($130k for a promise not to talk) that ignores that Daniels entered into the contract and accepted a certain some on the basis of those other representations.

                1. I contest part of NOVA's analysis. The essential problem here is not a lack of consideration but that there was no meeting of the minds. I've been more annoyed when non-lawyers assert there was "no consideration" notwithstanding the $130k, so it catches my attention. I get what he is saying (see the last sentence of my preceding paragraph) but consideration only becomes an issue if we consider it a contract between Daniels and someone other than Trump. And then we get into questions of whether $130k in exchange for Daniel's promises wasn't enough to form some kind of binding contract. Under this theory of the case, if Daniels kept materials she was supposed to dispose then her attempt to have the NDA declared entirely void becomes suspect. The better, and obvious, conclusion based on the representations of the contract (whether supposedly with Trump or potentially with Cohen) is that there was no meeting of the minds.

              2. If Trump actually managed to succeed in arguing that the contract was not supported by legally sufficient consideration every contract text in the country will have to be rewritten.

            2. If the company has no obligation, it is not a contract. Contracts require consideration from both parties. I suspect there is consideration in the NDAs you've signed but you're dishonest about it because it serves your point.

              1. Like CrispyBacon points out, in what world is $130K not consideration?

                The consideration in contracts are often trivial or nominal in nature. $1 and other valuable considerations, (Not getting fired!) in return for transferring your rights on a patent. Just getting to go through the door, in the case of the vast majority of NDAs.

                1. Was the consideration in this case $130,000 or was it $130,000 plus an agreement to fulfill certain obligations? Both parties can determine what their consideration is, but that cuts both ways.

                  1. The fact remains that there is consideration. There is the money. There are the promises. So there you go.

                    Imagine if Trump were not a (pseudo)named party and Daniels wrongly accepted Cohen's representations that the contract would be binding on Trump. Then Trump doesn't abide the terms and Daniels sues Cohen. There are defects that may result in voiding the contract, but consideration isn't the problem.

                    If we accept this is supposed to be a contract between Trump and Daniels, consideration is not at all the problem. "Meeting of the minds" is not a favored concept because of the confused application in most contract situations but appears apt here. Daniels signed a contract with Trump to provide her certain assurances as well as the money. The amount of money she accepted could reasonably be pinned to the understanding of what the contract entailed. And Trump supposedly knew nothing about it. There was quite literally - if these facts are accepted - no meeting of the minds.

                2. Nobody has said or argued that $130K is not consideration. I and others have pointed out that the $130K is not the entire consideration spelled out in the agreement and that the other consideration spelled out in the agreement are personal obligations of Dirk Diggler or whatever his pseudonym was. Therefore, there are a number of likely defenses to the contract (none of which are "failure of consideration"), but all of which depend, to some extent, on the fact that, given that Trump was unaware of the contract (according to Cohen and Trump), Stormy did not and could not have received the specific consideration for which she had bargained.

                  But, I understand that you find it inartful to use the term consideration for purposes other than discussing a total failure of consideration. Perhaps you are right that it is inartful. Alright, wherever I use "consideration" substitute the term "benefit."

                  1. If we are discussing *whether there is a binding contract* and not merely whether some clause, term, or benefit may be enforced, it matters a great deal. It's not merely inartful to speak of consideration, or benefit, but inaccurate.

                    The contract on its face is okay. There ARE obligations/benefit/consideration for both ostensible parties. The contract recites the benefits that Daniels is due. Thus they exist, at least as recited in the contract.

                    The trouble, to paraphrase a nearly dead horse, is that the other party (Trump) supposedly didn't know about the contract. Talking about a lack of consideration is neither here nor there in that case. It's like complaining about a document not being notarized when there aren't signatures.

                    There is an interesting question of whether the contract could be valid based on ratification by Trump subsequent to its signing. That's probably the best (long) shot they have but Trump has seemingly undermined that route.

                    But looking at the complaint again, Daniels is insisting this contract was with Trump and that he knew all about it. Thus she can seek hold him to it. But she's not asking for that. She's not asking that the benefits of the contract owed to her be enforced. So benefits/consideration isn't even an issue practically as well as academically in this case.

                    1. Crispy,

                      I disagree. You say: "Talking about a lack of consideration", but I never argued "lack of consideration." I noted that the contract recites particular consideration and that one of the contracting parties (apparently Cohen) was unable to provide that recited consideration. Therefore, the contract is void or voidable based on a number of theories, including no meeting of the minds, fraud in the inducement and fraud in factum.

                      My use of the term "consideration" occurred in the parenthetical which concluded with the assertion that "Stormy didn't get her full consideration." You and Brett have interpreted this as stating the contract fails for "lack of consideration". No, the context is clearly: She did not get the benefit of her bargain. Which is in response to Brett's repeated argument that Stormy got some of what she bargained for, so why is she complaining? She didn't get the full benefit of her bargain. At worst, "full consideration" is an inartful way of saying "full benefit of the bargain". That matters where it was actually impossible (if the Cohen/Trump position prevails).

                      We were talking about the Cohen/Trump position, which is that Trump didn't know about the contract. Therefore, whether the actually contracting party was legally capable of conferring the benefit/consideration recited in the contract is quite germane to its validity.

      2. "It doesn't matter if Trump just happened to have abided by the terms of the deal, if he was never aware of the deal he never agreed to the deal."

        What if the anonymized Trump on the other end of the NDA is Melania rather than Donald?

        1. Since they represented that the anonymized Trump at that end of the NDA was Donald, not Melania, that would make the contract fraudulent from inception, and thus void.

          1. "Since they represented that the anonymized Trump at that end of the NDA was Donald"

            Unclear about the meaning of "anonymized"?

            1. The actual NDA contract was written using pseudonyms for both parties rather than their real names.

              1. Except that it was spelled out in a cover letter that was also filed with the complaint, sure. It turns out you DO have to read all the way to the end...

          2. Cite required. Who represented that, to whom and where? Neither Trump's nor Daniel's real names were used anywhere in the actual NDA.

            1. There was a side agreement that explained who the pseudonyms were.

    3. Yeah, and poor ol' Trump being more accustomed to stiffing sub-contractors rather than the other way around.

      1. Do some sub-contractors fail to perform as contracted and deserve to be stiffed?
        (Sorry I've been watching too many episodes of American Greed on Escape channel.)

        1. Only the ones who can't afford to sue.

        2. Maybe, but stiffing subcontractors was indeed a regular part of Trump's business plans

    4. You can't hold someone to an illegal contract.

      1. There will be a large number of corporations that are shocked to learn that NDAs are illegal contracts.

        1. Or would be, if NDA contracts were illegal, like non-disclosed campaign contributions are.

          Some NDA contracts are void as contrary to public purpose, but corporate legal affairs officers know how to avoid THOSE pitfalls

    5. "OTOH, she apparently took the money, which again almost universally, would obligate her to deliver on her end of the contract"

      Except, of course, if there is no contract for her to deliver on.
      You can have cases where substantial actions were taken in anticipation of a contract being formed, but ultimately no contract arises. This provides a challenge in "unwinding" the transaction(s) that were undertaken, but doesn't magically create a contract that wasn't created.

      The other potential problem is that contracts that are for an illegal purpose are generally unenforceable. There is some question as to whether the structure of this contract is illegal (a non-disclosed contribution to the Trump campaign).

      Finally, there's an argument that the performance under the contract by Ms. Clifford is substantially complete... The goal of procuring her silence was to keep her from affecting his election. His election was achieved, and cannot be retracted at this point, so her part of the contract was performed as anticipated. Her continued silence provides no additional benefit to Mr. Trump, and her ending of her silence produces no actual damages to him. (This is under the assumption that her agreement is with Mr. Cohen, and not Mr. Trump.)

      1. If the nondisclosure agreement was for a matter of weeks, then you would have that argument. It was not.

        1. Performance contracts are generally limited to a period of 7 years.

  2. Devil's advocate: why has the word "blackmail" not been heard even once in this discussion?

    1. Because Trump is, by definition, the offender in any relationship. He could be mugged, and it would be his fault for bruising the mugger's knuckles.

      1. ...Are you arguing the real victim here is Trump?

        1. Let's see... one party agrees to a contract, accepts the money, then breaks the contract in hopes of a bigger pay day... yeah. I agree. Stormy is the victim here...

          1. Do you even realize you left out the part about the adultery and threats?

            1. Stormy left out the part about the threads until recently, too. A cynical person might suppose that it was just a fabrication intended to spice things up a bit.

              1. Brett Bellmore: "Stormy left out the part about the threads until recently, too"

                This was the second Soprano-like experience Ms. Clifford has reported. When she was mulling running against David Vitter in Louisiana, her adviser's car was bombed. Color me somewhat skeptical.

              2. Brett,
                Is this accurate? My recollection was that she did tell at least one friend at the time. But I have to admit that I find this whole sordid mess so cringe-worthy that I fast-forward past this issue, each time it comes up on my I absolutely might be mis-remembering.

                1. It's now SOP when you allege that something happened in the distant past, and didn't make any tangible record of it, to allege that you privately told somebody else who also failed to make any tangible record of it.

                  1. Do you have such a high bar for truth about Clinton's improprieties?

                    1. I've had to give up caring about "improprieties", due to a lack of candidates who don't have 'em. I do care about crimes, though, and Clinton had no shortage of those.

                    2. Do you mean like HRC using campaign funds to pay Russian FSB agents for dirt on Trump?

                      Or are you discussing Bill's numerous sexual assaults & rape while Governor of Arkansas and President of the USA?

                    3. Ugh, shouldn't have brought up Clinton. Sorry to trigger you guys.

                      The point is not about Clintons or Trump's crimes or lack therof, they are about Brett's inconsistent requirements for when his moral outrage is triggered, as well as which evidence he's willing to believe.

                      FlameCCT, just check whether your assuredness of the Clinton's crimes applies as much to Trump.

                    4. Sarcastro, the analogy to Stormy among the Clinton improprieties would be one of the beauty contestants no one cared much about--stories about one night stands from a decade earlier had no impact against Clinton. The Stormy obsession stands quite in contrast from the Clinton precedent.

                    5. What precedent? Did Clinton getting sued and impeached but not removed mean every President from now on can just bang anyone he wants?

                      'Precedent' is not how morality works. It is, however, how turning your previous principals on a dime works.

                      Speaking of morality, debating whether that stepping out with a paid porn star is better or worse than stepping out with a consenting intern is a dumb game to play.

                    6. "Did Clinton getting sued and impeached but not removed mean every President from now on can just bang anyone he wants?"

                      As a matter of fact, yes. New rules.

                    7. Rare to see someone so enthusiastically eschew principal.


                    8. I learn from my side's mistakes.

                      And you obviously thought Clinton should be removed from office.

                    9. "stepping out with a consenting intern" WHILE PRESIDENT.
                      And what was your position at the time? Is this an issue of morality or legality?

                    10. I was too young to care.

                      What about you, leninsmummy? Do you have the specific concerns about adultery only when you're the President actually in office?
                      Many have clearly gone this rout, but Bob is the only one to explicitly say he's stopped caring about principal because he envies the evil liberals his fevered partisan mind has created.

                    11. "he envies the evil liberals his fevered partisan mind has created"

                      No, I saw the hopeless GOP flailing about morality with blunted the "Gingrich Revolution" and left the party in the hands of guys like Hastert.

                      As we saw with Trump's election, most GOP leaning voters took the same lessons because Trump's many immoral acts made no difference in the end.

                    12. What was the lesson? Morality: why bother?

                    13. A neat trick, being the party that's beyond morality but also all about ending abortion, still complaining about gay marriage, and blaming school shootings on ending school prayer like 60 years ago.

                      But as far as you particularly, I suppose that's well and good. The GOP were giant hypocrites in the 1980s, 1990s, and 2000s about character and morality. Repenting and going forth to moralize no more is convenient timing, but I'll take it.

                      We can engage on my issues with consistency with other GOP principals, but I am aware that this moral majority stuff is recent and kind of an odd fit.

                    14. We are talking sexual morality, not all morality.

                      Sexual morality is a lost cause. Trump just proved that the Clinton precedent was not a one off but the way it will be going forward.

                      If a politician is on your team, its anything goes except for [sometimes] sexual assault. But even then, that depends, see Clinton and Trump..

                    15. What a pity the Republicans were the party of family values that made it their business to attack and deride so many others for their sexual morality. How weird you think everyone will suddenly forget that just because it no longer suits you, at least in the narrow singular example of Trump.

                    16. Abortion and gay marriage are sure as heck about sexual morality.

                    17. Abortion sure as hell isn't about sexual morality.

          2. That's funny. People so cynical in principle about politicians should surely enjoy seeing a sleazy cover-up falling apart so spectacularly.

            1. That's okay everyone knew you guys were faking that family values crap anyway, along with just about every other set of values you professed to hold.

    2. I've heard it quite a bit, though mostly in the context that Trump is really vulnerable to blackmail because of his history of incidents like the Daniels affair.

      But there's no reason to accuse Stormy Daniels of blackmail. Cohen approached Daniels with the offer of money for silence, not the other way around. Nor is there reason to think she broke silence seeking additional money from Trump.

      1. "Cohen approached Daniels with the offer of money for silence, not the other way around."

        And, how exactly do we know this?

        1. We have zero evidence of a blackmail scheme and a lot of talk of Cohen arranging for multiple women's stories to be buried (suggesting he's the initiator).

          Though come to think of it, if that were the case that would mean Trump has been successfully blackmailed.

          I'm not so sure that's the narrative you want to be pushing for your guy 🙂

          1. If Trump had zero knowledge of this; how would Stormy (and all the other women) have known to contact Cohen specifically? Almost impossible to believe that the women were the ones to initiate this, rather than directly from Trump or directly from Cohen.

            1. For all I know, the operators at Trump Tower have a special code for "Former mistress calling to demand money.", and know exactly where to direct the call.

              1. So you've always figured him for a blackmail risk?

                1. He'll pay to avoid some measure of bad publicity about his sleazy escapades. He would have needed a much better reputation to pose a blackmail risk.

                  1. Or that's what you'd say if you make the assumption that the publicly known reputation is as bad as his sleazy behaviour gets. Or you weren't taken aback by the sheer volume and variety of known sleazy behaviour it turned out his supporters are willing to overlook/accommodate/defend/not look too closely at.

                    1. Yes, I actually am assuming his publicly known reputation is as bad as his sleazy behavior gets, because if anybody had evidence that it was actually worse, they'd have been millionaires since about mid 2016; People were coming out of the woodwork to allege this and that during the campaign, anybody with really damaging dirt on him would have made out like a bandit.

                    2. "...they'd have been millionaires since about mid 2016..."

                      Millionaires? We know what the going rate for silence is. It's not millions.

                    3. What a cute and self-serving little assumption.

                    4. Well among "sleazy behaviour" that we know about, but isn't widely reported because it isn't heavily corroborated.

                      There's 2 rape accusations, one from an ex-wife.

                      At least one claim of an illegitimate child, and do you really think he never pressured a woman into having an abortion?

                      Mob dealings due to his involvement with the New York construction industry.

                      Lots of instances of campaign contributions towards politicians turning into favourable action towards him.

                      Lots of instances of his charity performing actions that benefited him financially.

                      And of course all the allegations in the Steele dossier.

                      Maybe it all just is rumour, but I find it hard to believe that the guy who pulled off the TrumpU scam isn't guilty of business actions that could land him in jail.

    3. "why has the word 'blackmail' not been heard even once in this discussion?"

      Because there isn't any blackmail.
      Ms. Clifford already talked about the affair, and the information was published and has been available to the public.

      If I call the White House, and threaten to release the information that Mr. Trump has engaged in several real-estate transactions and appeared on a television program, unless I get paid, that's not blackmail. You cannot blackmail people by threatening to reveal information that is already known by the public at large.

    4. The contract would be freely agreed upon, a bargain for behavior (non-disclosure) in return for consideration ($130,000). It's not blackmail, just business as usual

  3. Not to mention Cohen's exposure to legal malpractice liability to his putative client Trump for settling a case (or claim) without (or in excess of) the client's authorization.

    Not that Trump wouldn't sue his own lawyer or anything....

    1. No case was settled, it was an NDA. There was never a threat of a civil lawsuit here.

      1. There is an actual lawsuit, not just the threat of one.

        1. Yes, but he didn't settle that one. That one is ongoing.

          There was no lawsuit pending when he paid the $130k, so that payment wasn't Cohen settling a case without his client's authority (as the original comment claimed).

          1. You can settle a case before its filed. That's what insurance companies do the vast majority of the time.

            1. Sure, but as JesseAz noted, there was never a threat of a suit. The only actual suit is the one currently pending. So in no instance did Cohen settle a suit (or threat of a suit) without his client's approval.

  4. I realize Post is pushing unpersuasive bias here, but his conclusion is a stretch at best.
    It is very possible -- if not common- that a client can deny having an affair but still agree to pay a ransom of sorts

    1. "It is very possible -- if not common- that a client can deny having an affair but still agree to pay a ransom of sorts"

      That's not what happened here, though.
      The client is denying that an affair occurred AND ALSO denying having paid a ransom, AND the lawyer is claiming to have both negotiated the contract AND paid the ransom, without consulting the client.

      The real problem here is that what has been disclosed does not add up. Ms. Clifford had already divulged the affair, so paying her to keep it quiet isn't worth $130K. So, something else WAS worth $130K, and what, exactly that was has not yet come to light.

      This leaves it for people to use their imaginations to create possibilities out of whole cloth.
      For example, it might be worth $130K if Ms.Clifford has video of the man trying but failing to perform. THAT would be worth paying $130K to suppress, for a man of Mr. Trump's ego. Or if Ivanka was in the room, THAT would be worth $130K to suppress.

      ... and that's the entertainment value here.

      1. In fairness, I think we might all chip in to suppress that.

      2. I'm going to go way out on a limb and say ... I'm not going to play this one. Been there, done that, got the t-shirt and am officially bored with the whole thing

  5. How much does the average American give a hoot about this?

    1. Not a hoot. Maybe a poot. Maybe

  6. Something I don't understand about the campaign contribution angle on this: If Trump were to admit that he made the payment to Stormy Daniels it goes away. Even if it is a contribution, it's self-funding and therefore without limit. This wouldn't be a hard case to make since it's obvious to the whole world that Cohen didn't pay out of pocket. It may well open up other legal problems.

    1. I'm guessing that, since some FBI agent somewhere probably heard him deny it, they're going to go with the same "lying to a federal officer" type charge they hit Flynn with, if they can prove he did pay it.

      1. It's not enough that merely a federal officer somewhere heard you lie on TV or in a speech. That would render all televised lies (that might affect a criminal case) felonies and (whether or not that is covered by the plain text of the law) I doubt anyone is willing to stretch the statute that far and certainly not in a high profile case like this.

        1. Not to mention a slightly 'chilling' effect on every politician in the universe.

        2. You're talking about a party that is stretching the novelty of all politics as crimes. John Doe in Wisconsin, the grand jury indictment against Perry in Texas, Stevens, Emoluments with Trump, etc. You really think this is their limit?

        3. We're talking about people who were seriously discussing charges under the Logan Act. They're not exactly hewing to conservative legal approaches here.

          1. If they were stretching the law as thin as you imply then why isn't he facing criminal charges for the Trump foundation.

            Some of those are just ethical issues (taking credit for other people's donations) but there's a lot of self-dealing and illegal campaign contributions.

      2. Well Flynn confessed.

    2. Yes but he would have violated the reporting provisions. Still, I agree if this came out of his own pocket it would probably just be a slap on the wrist for Trump (and he could even claim that he believed since he would have paid in any case to protect his reputation in the business world it wasn't a campaign contribution).

      However, if he illegally siphoned off campaign funds to do this and falsified documents to cover up the true use of the money that's more serious.

      1. Sorry for the double reply.

        I think there is some kind of error on this site that causes occasional double posting since I didn't post two replies.. It might be that pressing submit multiple times submits multiple AJAX requests or something.

        1. I blame a worn out key on my old laptop double tapping.

          1. Ohh I agree, I probably hit the button twice but the javascript should only submit once even if you hit reply twice (unless you actually reenter your comment).

      2. Problem... Trump has made these payments prior to his candidacy. He did them to protect his family, protect his image/trademark, or protect his business. Campaign Finance is pretty clear that it can not be an element of a campaign crime if it is a continuation of prior behavior/business. There is nothing unique about the Stormy payments, in fact this has happened many times in the past.

        This is the same FBI/DoJ that gave the Obama campaign a slap on the wrist, a fine, for over 2 million in illegal contributions.

        1. Problem with your problem:
          She'd already talked to the press, and the story was published.
          So he was paying for something OTHER than her silence.

        2. The pay,ents to Clifford occurred a month before the election. When are you supposing Trump became a candidate?

      3. Would that be like HRC campaign paying a legal office, who then paid a company, who then paid a foreign ex-spy, who then paid Russian FSB agents?

        1. Which is pretty ordinary for how oppo research goes, as we have learned.

          There is as of yet no clear protocol for hush money during a campaign.

        2. If it isn't you'll be working overtime to make it seem as if it is.

    3. Yes but he would have violated the reporting provisions. Still, I agree if this came out of his own pocket it would probably just be a slap on the wrist for Trump (and he could even claim that he believed since he would have paid in any case to protect his reputation in the business world it wasn't a campaign contribution).

      However, if he illegally siphoned off campaign funds to do this and falsified documents to cover up the true use of the money that's more serious.

      1. He would, of course, have done that. Where else could a man like Trump have found $130k? [/sarcasm]

        I think there's a certain desperation to find some kind of crime, any kind, that can be pinned on Trump.

        1. Yes, Brett, we all look forward to your objective and even-handed analyses of Trump's lies, sexual assaults, affairs, et al.

          I remember a time when conservatives were appalled (at least, in public, they pretended to be) by bad character. Even the notion of a candidate who cheerfully screwed hard-working small businessmen so regularly that it was part of his business plan...that would have been unthinkable. My, how my Republican party has changed.

          [Disclosure, Trump and Cruz were the only two political candidates I financially supported during the election campaign, so I readily admit to an utter lack of objectivity in this matter.]

        2. "He would, of course, have done that. Where else could a man like Trump have found $130k? [/sarcasm]"

          A man like Trump? You mean a guy who saves money by not paying his contractors? A guy who uses other people's contributions to his Foundation to buy things for himself? That kind of guy?

  7. I'm not sure Cohen actually claimed he negotiated this agreement on his own. He said he used his own money to facilitate (or was it effectuate) the payment which isn't in conflict with the possibility that Trump directed him to, Trump paid him back or it was Trump's money and he just paid the wire transfer fee.

    He obviously phrased things so that people would draw that implication and maybe he latter explicitly denied Trump's involvement but his initial statement seemed to be carefully worded.

    1. Quibbling over the definition of "is" is the kind of thing lawyers do - - - - -

    2. I don't think anyone actually believes that he paid out of his own pocket with no thought as to being made whole.

      There were rumours that Cohen was complaining that Trump hadn't paid him back yet though nothing definitive.

      1. Or perhaps the money came from a Trump other than Donald.

        Even if Melania was pissed off at Donald over the affair, that doesn't mean she would be happy about her family's dirty laundry being aired in public.

        1. It was already out there, whether or not she was happy about it..

          What I'd be interested to know is whether her pre-nup has a substantial payout for infidelity early in the marriage.

  8. The FB feed doesn't have the I clicked on it just to check exactly which of the conspirators felt the need to revisit this topic.

    And sure enough...good ole DP...with a trademark exclamation point to boot. Short post, so apparently only room for one exclamation mark today.

    1. He's at least consistent in his derangement. At least he isn't quoting Media Matters like he was last year.

  9. Trump should have obtained Congressional approval before going in...wait, that's Syria, never mind.

  10. What became of the theory Melania paid for Stormey's silence?

    1. Normal people laughed at it so it never left the right wing feverswamps.

  11. The issue of whether a President's sex life matters was settled nineteen years ago.

    Why relitigate it?

    1. Because the current president is such a sleazebag?

      1. Bill Clinton wasn't a sleazebag?

        1. 'Look over there, not here!'

          1. ""The context! It burns!"

            1. I'll be sure to remember the vitality of context the next time Rev. Kirkland brings up conservative schools on the next campus speech thread.

              How does Bill Clinton being sleazy make Trump less sleazy?

              1. The question, though, is not whether they are sleazy. They both are.

                The question is whether the public's resources should be spent on investigating and prosecuting them for being sleazy. On that, the defense from the Clinton years was, it doesn't matter, it's all about sex. Now we seem to hear a different tune.

                1. The defense during the Clinton years was to claim that he was being investigated for being "sleazy", when the truth was, he was being investigated for being criminal.

                  1. When Mueller sends a referral for sleaziness, I'll be right with you guys. But the panic doesn't seem to be about sleaze.

                    Though I believe there is a point to be made about inconsistency.
                    I recall quite a lot of discussion on the right of Bill Clinton setting a bad example, and the importance of morality and character in the President...not so much anymore, though.

                    On a bit of a collateral issue, I find it pretty amazing about the moral majority. Evangelicals tried to bring faith and morality to politics, and politics won so hard both their faith and morality became situational and based on politics.

                    1. I recall quite a lot of discussion on the right of Bill Clinton setting a bad example, and the importance of morality and character in the President...not so much anymore, though.

                      That was because their argument was rejected.

                  2. 'the truth was, he was being investigated for being criminal.'

                    So even more like the current situation, then.

            2. ""The context! It burns!"

              So you want massive investigations, multiple hearings and Republican condemnations of Trump's personal immorality? Because that is the burning context.

              1. No, I just want Sarcastro to stop plugging his ears and yelling "Whataboutism!" whenever somebody puts something in context.

                1. Well, perhaps if you had something of value and substance to add when reflexively reaching for a Clinton to justify your support for an utter sleazebag rather than just, y'know, whataboutery.

                  1. I voted for neither Clinton nor Trump and consider both to be embarrassments to the office of POTUS.

                    But both were duly elected to that office by the voters and I abide by their decision. I support what policies I agree with and oppose those I disagree with.

                    But what I find disturbing is that there is one group who does not seem to accept the results of the election, and is attempting to use the machinery of justice to undo the election. That is an attack on the Constitution, IMO, that is much more damaging than any stupid childish tweet Donald Trump might send out.

                    Let's summarize. Donald Trump's lawyer paid off a fancy prostitute to keep quiet about what happened. Then he might have lied about (or might not have) to the Special Prosecutor. Big Yawn. That is a big nothingburger as far as I am concerned.

                    And, yes, the fact that Clinton was allowed to walk away from perjury because it was "all about sex" does give context to this latest scandal in a teacup. It's not a distraction because the same people set a standard a couple of decades ago suddenly want to impose a different standard today.

                2. Context, properly used, rarely justifies anything.

                  But this isn't really about context, it's about distraction. As everyone can see.

                  1. No, it's about trying to rule out a priori head to head comparisons, so you can attack Republicans for doing X, and nobody is supposed to mention that this doesn't distinguish them from Democrats.

                    "Trump's shit stinks!"
                    "So does everybody else's."

                    1. Making a judgment (legal, value, or other) of A does not depend on that same judgment of B. That's called the tu quoque fallacy. As I'm sure you are smart enough to recognize.

                      If you want to argue hypocrisy, go ahead - there's a lot of that going around. But again, that has no bearing on your judgment of A.

                    2. Sarcastro, that is NOT the tu quoque fallacy. The tu quoque fallacy goes like this:

                      Roger says, "George, you're a bank robber!."

                      George says, "Don't listen to him, Roger robbed a bank, therefore I'm innocent!"

                      It's a fallacy because they can both be bank robbers.

                      If George merely says, "You're no better, you were driving the getaway car.", it's not tu quoque. It's context, a refutation of the implied contrast.

                      The aim here isn't to establish that Trump is a moral midget. Nobody is claiming he's some kind of shining icon!

                      The aim here is to try to establish that Trump is worse than the implied alternative. So we're perfectly entitled to make the implied alternative explicit, and ask if it really is any better.

                    3. 'The aim here is to try to establish that Trump is worse than the implied alternative'

                      Yeah, I don't think that once you've conceded that your elected a lying corrupt sleazebag knowing he was a lying corrupt sleazebag you get to lecture anyone else about how bad they are. To believe the alternative was worse, you'd have to believe people who voted for a lying corrupt sleazebag knowing he was la lying corrupt sleazebag, and who'd trust those jokers? You do have an incredibly inflated sense of entitlement though.

                    4. Values are not relative, Brett.

                      What kind of postmodernist have you become?

                    5. No it reinforces how indefensible Trump is when you can't stand up for the guy you're supporting on the merits, but capitulating to the unavoidable fact that you and he are up to your neck in shit. All you can do is point to spatters of shit here and there on the walls of history to suggest that this is fine.

        2. Clinton didn't have a boilerplate NDA for mistresses so actually he's coming off considerably less sleazy.

          1. No, he had state troopers, instead.

            1. Thank Christ Trump didn't have state troopers. Jesus.

          2. The woman in question was a 22 year old intern + the president of the united states. Trump was a private individual with a professional porn star. You think Clinton is less sleazy?? Go play the naked partisanship elsewhere, your equivalence is truly disgusting.

            1. Yeah, I hate to break it to you but there may be more little incidents circling around Trump than the one single case involving Stormy, and there's even a shitload of non-sex sleaze while you're at it. I mean my partisanship might be naked but at least it's not focused in a tunnel vision pointed a couple of decades ago.

      2. Maybe, but that really is irrelevant when the MSM has made the current President a daily target of rumor, scorn, derision and general attack. I'm not a Trump guy, but I've been following politics since the last Eisenhower administration and really cannot remember any President being subjected to this type of barrage. Whatever the rules were and are for the Clintons and Obamas, they have been completely scuttled for Trump. Accept that and everything falls into place.

        1. Orrrr: Trump's as bad as Republicans kept, and keep, trying to persuade everyone the Clintons and the Obamas were. Worse.

  12. Mr. Post wrote,

    I'm no expert on the precise scope of the attorney-client privilege, but I do know this: If a lawyer whom I have hired in the past to represent me in connection with various matters (and whom I expect to hire again in the future) goes off, on his own, without my knowledge or participation, and negotiates a contract with a third-party to which he later claims I am a party and in which he makes various representations on my behalf ... that doesn't sound to me like a matter to which the attorney-client privilege applies.

    Attorney-client privilege doesn't apply to matters. It applies to communications, oral and written, between an attorney and a client. Obviously nothing that Cohen ever said to, or did with, any of the people being bought off by the DNAs can be claimed to be a confidential communication between Cohen and Trump. Any and all correspondence sent to the people being bought off, all drafts of any NDAs that were exchanged, all financial transaction records -- these things, by definition, cannot be confidential communications between an attorney and his client, so they can't possibly be privileged.

    Finally: It's entirely possible for someone to be a third-party beneficiary of a valid, enforceable contract over which the third-party beneficiary has no knowledge. IIRC that's somewhere in about week 2 of first-year Contracts.

    1. Wow, it was about week 35 in my law school (ie, in the second semester of Contracts). How on earth did first year law students, with a max of 10 days of legal experience under their belts, understand the intricacies of 3rd party beneficiaries? (I personally thought it was one of the most complicated and nuanced parts of Contract Law. YMMV)

      1. Third-party beneficiaries to contracts certainly do exist. But a competent professional attorney would be expected to know the difference between them, and to draft a contract that doesn't identify a third-party beneficiary as one of the parties. Also, a competent professional attorney would be expected to advise a third-party beneficiary of a contract that they don't have the same rights as a party to the contract, such as, for example, to demand liquidated damages.

    2. The other aspect to this that nobody has talked about (so far as I've seen is attorney work product -- notes, memos, case theories, etc). That is protected as well.

      Whatever was seized in the raids is going to be subject to some very serious litigation before we're through.

      1. Depe ds. Sometimes things really, really obviously are not covered by privilege.

  13. If Trump emailed Cohen to ask, "Hey, in the future, can we really expect to enforce this $1M/violation liquidated damages provision?" and Cohen had answered that question in a reply email, and they'd both kept that communication confidential, that email could be properly made the subject of a claim of attorney-client privilege. If Cohen did some research, and wrote himself a memo for his file on the leading cases regarding unconscionability and resulting unenforceability of punitive liquidated damages provisions like this, that would be subject to an attorney work-product privilege, and if Cohen sent Trump a copy, it might also become subject to attorney-client privilege.

    Thus the taint team.

    1. Mind you, basically everybody in Mueller's employ will be familiar with the concept of "parallel construction", so the taint team accomplishes absolutely nothing but cosmetics.

  14. Finally, just to complete the primer: The subject matter of the communication still matters, even when we're just looking at communications individually. The communication has to be for the purpose of the giving or receiving of legal advice; as such, it can include within it a discussion of facts and law and strategy and tactics that range well beyond what a lawyer might write in a formal "opinion letter." But if the communication is instead for purposes, for example, of facilitating a crime -- "Hey, Mr. Trump, this text message is just to let you know I did indeed wire the bribe money to that Playboy bunny to compensate her for her promise to lie under oath" -- you're going to bump into the crime/fraud exception. And the SDNY reply to Cohen's TRO application before Judge Wood asserts that -- based on their monitoring of multiple Cohen email addresses pursuant to previously granted warrants based on independent probable cause -- most of what Cohen did was for business purposes of his own or Trump's unrelated to the giving or receiving of legal advice, meaning it would never qualify for attorney-client privilege even if it had indeed been kept confidential.

  15. I find myself skeptical, in light of the Johnson and Clifton precedents, that this sort of thing amounts to high crimes and misdemeanors, as opposed to the sort of scandalous matter that the public should consider at the next election.

    I doubt Mr. Cohen put up the money out of his own pocket. He worded his answer too artfully for this to be plausible. And if he did, I don't see why Mr. Trump couldn't just repay him and call it a day.

    1. That's pretty much what the Democrats said about Clinton's lying about Lewinsky. I think they (and you) were right, but they didn't ask me.

      Of course there was Juanita Broaddrick's accusation that Bill Clinton raped her, but that was outside Arkansas' statute of limitations.

    2. "I find myself skeptical, in light of the Johnson and Clifton precedents, that this sort of thing amounts to high crimes and misdemeanors"

      Unfortunately for Mr. Cohen, that isn't the standard he'll be held to.

  16. Hot off PACER, here's a link to Trump's lawyer's over-the-weekend homework assignment from U.S. District Judge Kimba Wood, timely filed just before 9pm Eastern time tonight:

    1. Based on a quick read-through, it seems Trump finally hired a lawyer based on ability, not because they shill for him on Fox News.

      Haven't checked the cites though. I bet Judge Woods' law clerks had a busy night.

    2. I notice that this document cites Stewart.

      Unlike the ACLU & their statement, people haven't forgotten that case nor the actions taken in that case.

    3. Timely filed, but the arguments against the appointment of a special master is pretty goofy.

      1. Even more goofy:

        Specifically, the Court should order the government to provide Mr. Cohen with a complete copy of the seized materials so that the President can then review the materials relating to him for privilege, pursuant to a reasonable schedule set by the Court

        What in the world? Mr Cohen already has all those documents, they were created by him in the first instance. Why does he need the government to give him back a copy of something that he originally wrote?

        Indeed the more I think about it, Mr Cohen and the President should indeed be able to file a specific claim of privilege for particular documents that the government seized, and the government should in fact be prohibited from submitting those to the investigative team until the court resolves it. But as I see it, nothing prevents them from asking the court for that right now . . .

        1. "Why does he need the government to give him back a copy of something that he originally wrote?"

          I'm going to guess it's because he doesn't have a photographic memory, and even if he did, it wouldn't permit him to delegate any of the work, or be admissible in court.

          1. Why would he need a photographic memory when we have these fancy computer systems that can securely hold backups of documents?

            Are you seriously suggesting that he doesn't have offsite backups? That a whatever-dollars-per-hour attorney has a less secure recovery system than most 5-grad tech startups? It's strains credulity.

        2. What in the world? Mr Cohen already has all those documents, they were created by him in the first instance. Why does he need the government to give him back a copy of something that he originally wrote?

          You understand that they seized his computers, right?

          1. Yes, Mr. Nieporent is exactly right: Mr. Cohen doesn't yet have a written inventory yet of what was taken from the various warrants (they covered his home, business, safe deposit box, boat, and hotel room IIRC), and he's unlikely to be able to provide even a complete list of clients, much less know what individual privileged documents exist, without replacement access to all of his files, however much law practice he was in fact engaged in. The SDNY won't even fight this request and probably have already set about digitizing what's not digital, then making digital copies of everything that are stamped with indexing control numbers (which we lawyers still call "Bates numbers" even though no one uses a hand stamp from the Bates Company anymore to do the numbering).

            1. The wacky part is that the argument that the party should get to review for privilege when you are the subject of the crim/fraud exception.

              Prof. Kerr brings the science on twitter.

            2. He has (or should have) a full offsite backup that would have been used in case the entire building was destroyed in a fire/disaster. From a disaster recovery perspective, this is no different than a total physical loss of the premises.

              Or are you suggesting that if the building burned down (or flooded) that Mr Cohen would not have been able to recover his client's files?

          2. You understand that every responsible business has an offsite disaster recovery plan.

            What was Mr Cohen's recovery plan if the entire building burned to a crisp?

  17. Democrats didn't care about adultery in the White House (but scream about power dynamics otherwise), why do they care now? TDS.

    1. So you make a good case that Democrats were hypocritical about Clinton in the 1990s.

      How does that means they aren't sincere about Trump now?

    2. Um, because adultery isn't the issue.

      It's payoffs, and lying, and potential federal election law restrictions on campaign contributions violations (although even I think that's kind of weak).

      1. To be fair, I also find Trump's treatment of women to be at issue.

      2. Adultery wasn't the issue in Clinton's case, either. It was the perjury and obstruction of justice.

        Lying in the case of politicians hasn't been a big issue for a long, long time, so long as it isn't under oath.

        The payoff could be embarrassing, but the reason they're trying to make it out to be a campaign contribution is exactly because it's only embarrassing otherwise.

        I think the bottom line is a line Glenn has used before: "This is how you get more Trump."; If the deep state manages to get rid of Trump, manages to prove that voting doesn't work even if you win the vote, I don't think they quite grasp how much worse things will get.

        1. Tell that to VinniUSMC, Brett. Though your 'only lawbreaking matters' position is not a great look.

          You guys are all over the map.

          1. And that cloaked civil war threat is the most evident example of desperate straw clutching you can get from you folks.

            1. Sorry, I was unaware I was cloaking it.

              I refer you to "the four boxes of liberty"

              Take away the ballot box, and you'll get the cartridge box.

              1. Pardon me for not taking that seriously - I'm sure you are sincere.

                But you were also sincere in 2008. And 2012. And when Obamacare passed. And when the Supreme Court upheld Obamacare. And gay marriage. And whenever guns are mentioned, even when it's good news.

                1. He's threatening to shoot people for trying to hold the president accountable, which is a novel approach to the limiting of executive powers.

                  1. Look, why do we value democracy? It's not like it's a great way to make decisions. The majority isn't magically gifted with knowledge or wisdom. Really stupid things can be popular. Where it's not really necessary that everybody make the same choice, just letting people make their own decisions is generally vastly better.

                    So, what's the virtue of democracy? Elections are war games.

                    Elections are a rough way of figuring out who would win if you held a civil war, and letting them have the win without the death and destruction. That's why democracies, so long as their elections are reasonably free and fair, seldom have civil wars: Everybody already knows who would win.

                    Once you establish that winning the election doesn't really mean you get to make the decisions, that if the "wrong" person wins, the result of the election will somehow be overturned, you lose that civil war suppressing function of democracy.

                    Let's make no mistake, we're not looking at an impartial legal proceeding here, we're watching a slow motion coup in progress. And if it succeeds, elections will no longer be functioning in the US.

                    And civil war is what you get when elections stop working.

                    1. Haha, elections are an awful proxy for who would win in a war. Why not go to a Futuresport or Robot Jox model?

                      I think your violent feelings towards your political opposition have affected your political philosophy. Neither history nor logic indicate that the consent of the governed has anything to do with the likelihood of civil war.

                    2. America has had one civil war. It was sour grapes after a fair election.

                    3. Nah, America has never had an actual civil war. A "civil" war is a war between people within the same country.

                      We had a secession followed by a war of conquest.

                    4. That's a helluva delicate and disputed distinction to rest one's political worldview on.

                    5. "We had a secession followed by a war of conquest."

                      Admittedly it will not be that great a departure for me personally, but after a statement like that I see no reason to take anything you say seriously ever again. That is, unless you've got some finer points to make along the lines of "Sure a lot of Jews died, but so did a lot of other people". That stuff I take very seriously, if for no other reason than to gauge how wide a berth to give you should I see you on the street.

                    6. No, you're watching the results of electing an obviously corrupt sleazebag to the most powerful political office in the land. He's not above the law. If you manage to arrange it so that he is effectively above the law, your democracy is dead, no matter how many war-game fantasies you project onto the political process.

                    7. "Once you establish that winning the election doesn't really mean you get to make the decisions, that if the "wrong" person wins, the result of the election will somehow be overturned, you lose that civil war suppressing function of democracy."

                      You mean like Trump claiming Obama couldn't be president because he was a Kenyan?

                      Or the attempt by the GOP to impeach and convict Clinton over lying about cheating on his wife?

                      How is it a coup if Pence ends up as the President? Is this a #NeverTrump coup trying to get an actual evangelical into the Oval Office? It's not like giving Trump a hardy "Your Fired!" and quick trip to jail is going to suddenly put liberals in charge again. (We have 2018 and 2020 for that, right?)

                      Speaking of "taking away the ballot box," how do you square that with GOP efforts to keep minority voters away from polling stations? It's a bit late now to suddenly claim that these investigations, which I remind you are happening with the GOP in charge of the Presidency, the House, and the Senate, are a coup.

        2. How the fuck is it a campaign contribution?

          1. Not my area of law, but it is money paid for the purpose of furthering the campaign, isn't it?

              1. By keeping an affair with a porn star secret.

        3. To turn that on its head, this is what you get when you elect a obviously corrupt sleazebag like Trump. You only think the investigations are politically motivated because so many of yours were. Everyone see what you elected and what it results in. I don't think they'll be all that eager for more of your kind.

        4. One of the few statements out of this White House that I agree with was made in December when there were renewed calls for Trump to resign or to be investigated by Congress for his alleged sexual abuses. Sarah Sanders replied that all the allegations were public before the election and the voters elected Trump anyway, and that should settle the matter, and she was right. It is the voters' decision and if they are informed when they make it Congress has no business second-guessing them.

        5. "Adultery wasn't the issue in Clinton's case, either. It was the perjury and obstruction of justice."

          This is misleading, since the perjury and obstruction of justice was manufactured. They went looking for financial fraud in a land development deal, and didn't find any, but they did get information about a mistress who wasn't even a mistress when the investigation started.

    3. Bill Clinton didn't even have the sense to bang supermodels, playmates, and pr0n stars. Or trade a few wives in for updated trophies. What a schlub!

    4. If I had to guess why Democrats suddenly care, it's because why the fuck shouldn't they hammer the Republicans and Trump with every ugly nasty thing Trump does and the Republicans suddenly have to reveal they no longer care about? We know you never really cared. Now we get to hear you admit it openly and loudly and proudly. All the things you no longer care about like national security and fiscal responsibility and personal morality that you cared about with violent passion until the moment Trump took office and which you will immediately start to try to care about with violent passion again when he is out of it. It's like you're stamping your feet because it's unfair your political opponents are using the political capital you are feeding them as you strip yourselves of your credibility.

    5. No, Democrats, and many others judging by the 1996 election, didn't think the president should be impeached for lying about adultery in the WH, which is vastly different than not caring about adultery in the WH.

  18. TDS leads to sloppy analysis--indeed it's hardly legal analysis at all. An agent with apparent authority may well bind the principal. You have to know a lot more facts than we do. And communications with an attorney who exceeds his authority remain privileged communications between a client and his attorney.

    1. Your analysis, on the other hand, is rock-solid.

      No need for an actual attorney-client relationship, you can still get binding contracts and privilege just by knowing a guy!

      Bottom line: I don't know what the law is here, but it looks a lot like no one else does either.

      1. Huh? No one has disputed that Michael Cohen has acted as Trump's lawyer. I agree, if he never had, it's hard to see how he could have apparent authority, but that is not the facts as we know them.

        1. You should ignore most of his hot takes.

        2. The current claim is at the time the NDA was signed, Cohen had taken off his lawyer hat. Under your understanding, there is no down side for that kind of chicanery.

          1. It is impossible to be clearer than I was, so I will simply repeat: You have to know a lot more facts than we do.

            1. I dispute your legal analysis, not your facts. Both from what I learned in law school, and just via simple prudential concerns, a one-time attorney can't just change your role willy-nilly like that. Certainly and not gain all the benefits of acting as an attorney with none of the restrictions.

  19. I think the argument I would make is that the client gave me full authority to enter into contracts on his behalf so even if Trump did not know about it the contract would still be valid because the lawyer had authority to enter into agreements on Trumps behalf.

    1. The issue with that is that even if the agent is authorized to negotiate and enter into contracts on the principal's behalf, they still have to inform the principal that the contract exists. Failure to do so would be a fairly severe breach of legal ethics, and opens the door to questioning whether or not the contract is valid.

  20. Sure, having an affair with a porn star a decade before the election is just the scandal that will bring down Trump.

    Just like the Access Hollywood tape meant he would lose the election.

    The mental break that occurred in people after the election is something to behold.

    1. Of course it won't bring him down, silly! Republicans have placed him above all human laws and conventional morality. He has license to do what he will with your blessing. For now. I don't know why you get so annoyed when others who are less enamored of your god-emperor bear witness to these things you are doing that you really should be proud of if you believe in them so much.

      1. I am amused, not annoyed.

        Look, my side [me included] went down this rathole with Clinton in 1998. The sides have just flipped.

        1. Clinton lied under oath, while POTUS.

          A bit different

          1. That...may not be a hill you want to die on.

            1. It's not a hill. It's a statement of fact.

              Clinton was impeached for lying under oath. Perjuring himself.

              There is quite a big legal difference between lying and lying under oath.

              People ignorant of history like to claim that Clinton was impeached for the affairs and sordid behavior under the Resolute desk. But that is simply not true. His dalliances were certainly used as a political club by the other side, but the legal activity was about the perjury.

              1. I was young, and I'll admit I haven't made a close study. Plus impeachment is a political act that lies with Congress alone. But as an academic question, isn't there a materiality component to perjury?

                My point is that honesty doesn't seem to be Trump's watchword either. Should Trump go under oath, you may find yourself painted into a corner. I just think you should keep your options open!

              2. Yeah and I guess if Trump turns out to have done something illegal you'll be okay with his impeachment, too.

                1. "Yeah and I guess if Trump turns out to have done something illegal you'll be okay with his impeachment, too."

                  Um, yeah. Unlike you, I have not invested my rational thought and emotional balance in asinine politics.
                  Rational people look at this current fiasco and realize lawfare is being used against a sitting president in a way that has not occurred in many decades.
                  Clinton's impeachment was not even close to this bad, primarily because the media was on his side and tempered the worst of the partisan politics. And if the dumbass didn't boldly lie under oath, it would have blown over.
                  now, currently, the fever dreams of people like you are being fanned into utter delusion by a childish media desperate to tear down the legally elected POTUS.

                  1. Yeah, when it was Clinton it was fine when it's Trump it's not you're clearly not emotionally invested in asinine politics.

                    1. Nothing makes me so happy as the resurgence of 'If you weren't so irrational, you'd see I'm objectively correct.'
                      It's like a nostalgic remake of an old classic!

        2. Then let justice be done, hey?

      2. So you are taking the position that it is now appropriate to utilize the full-force of the federal law enforcement powers to investigate a POTUS over civil matters that occurred before election?
        Civil matters over a personal interaction and privately managed exchange of money? This is the new political world you want?

        Stupid totalitarian shill.

        1. You heard the cries about abolishing our representative democracy system right after the election. There are some seriously ruthless people out there, and as you know, there are so many laws that he must've tripped up SOMEWHERE, that's the glory of our system.

          1. You heard the cries about abolishing our representative democracy system right after the election

            Dunno where you frequent; I musta missed that. But it is always nice to be convinced the other side is evil and violent so don't sweat the small peccadillos as you fight them!

            The only place I'm hearing cries for political violence right now are comments around here these past couple of weeks.

        2. Well if that's all it turns out to be you have nothing to worry about at all.

  21. that doesn't sound to me like a matter to which the attorney-client privilege applies

    But the privilege doesn't really apply to matters -- it applies to communications. If there is a communication between Trump and Cohen discussing a legal strategy of having Cohen execute NDAs so that Trump can have plausible deniability, then those communications would presumably be for the purpose of legal advice or assistance, even if Cohen then goes and signs an NDA without telling Trump. And if they are lying in their "plausible denials" (i.e., if Trump knew about everything), the communications between Trump and Cohen would presumably still be privileged. I wouldn't think the crime fraud exception would apply, since it's not a crime or a fraud to lie to the public about a settlement. Of course, if there is a communication that is not for the purpose of seeking legal assistance, then it would not be privileged, but not because of anything Cohen said publicly about Trump's lack of knowledge -- a lawyer can't waive a privilege.

  22. David, what is it like to suffer from acute Trump Derangement Syndrome?

  23. >>parties to a binding contract must, as a near-universal rule, know that they are entering into a contract for there to be one.

    Okay, I am intrigued. What is (are) the exception(s)?

  24. Hold your horses. You skipped an even more important aspect of this story that deserves its own article.

    The only "evidence" connecting Trump to Cohen's NDA with Daniels is Daniels' own allegation. In the NDAs publicly available (filed by Daniels in her lawsuit), the only portions of the NDA / letter disclosing who "DD" was/is has been REDACTED. This seems like an exceptionally critical part of any lawsuit or discussion about the NDA.

    What purpose would Daniels have in redacting the single most important part of her NDA with Cohen? That is, IF "DD" was Trump?

    Something fishy about that redaction. It deserves attention.

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