So investigators are looking into whether the president’s attorney was floating pardons so potential witnesses wouldn’t testify against his client in a criminal investigation. By now it’s an all-too-familiar tool in the Trump playbook, offering payment (or in this case a pardon) for silence.
If this isn’t obstruction of justice, what is?
NANCY LEDERMAN, NEW YORK
The writer is a lawyer.
End of the Nondisclosure Agreement? Not So Fast
Despite building backlash, lawyers say companies will keep using confidential settlements in sexual-misconduct cases
In recent months, revelations that Hollywood producer Harvey Weinstein and other high-profile individuals reportedly used such agreements for years to silence their accusers have sparked debate about the merits of requiring secrecy as a condition to pay off sexual-misconduct claimants. Critics say the agreements can end up protecting serial predators and putting psychological stress on victims to keep silent about their experiences.
This month, after filing for bankruptcy protection, Weinstein Co. said it would end any nondisclosure agreement that has “prevented individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories.”
.. many lawyers say the use of nondisclosure agreements to settle sexual-misconduct claims is likely to continue. Without promises of confidentiality, they say, companies will be less willing to resolve disputes or pay large settlement amounts. Part of the rationale put forward by companies: keeping settlements secret is necessary to stop other disgruntled employees from seeking similar payouts.
In some instances, victims desire confidentiality to avoid ostracization from future employers and to move on without unwanted attention. If a harassment case goes to court, companies could try to publicly smear the victim’s reputation in a protracted legal fight.
.. Often, victims try to resume their careers and don’t want the public to know they were victimized
.. companies could try to sidestep the rules by re-categorizing sexual-harassment settlements as claims that aren’t subject to the new laws, such as sex or race discrimination
.. The use of nondisclosure agreements in sexual-harassment settlements took off in the 1990s, after federal civil-rights law was amended to allow for bigger monetary awards in employment-discrimination cases, attracting more plaintiffs’ lawyers to the area. As court dockets became overburdened, judges pushed for more cases to settle out of court, leading companies to insist on confidentiality in settlements.
.. in a high-profile case where details are already public, institutions may be reluctant to sue because of concerns about the public-relations backlash.
USA Gymnastics has said it won’t pursue legal action against Olympic gold-medalist McKayla Maroney for possibly violating the terms of a $1.25 million confidential settlementshe signed in 2016 to resolve sexual-abuse claims. She filed a lawsuit last year that seeks, in part, to have the confidentiality provisions of that agreement invalidated.
.. “It can lead to complacency within an organization because they know complaints won’t ever see the light of day,” Ms. Yang said. Eliminating NDAs “could create more incentive for employers to stop it early.”
What Went Wrong in the Stormy Daniels Case
.. the biggest question might be why the President of the United States didn’t just let her talk.
.. her suit contends that she isn’t bound by the agreement, because Trump never signed it and because his lawyer Michael Cohen had spoken—and lied—about it publicly.
.. The suit also says that the Trump camp used “coercive tactics” to pressure her to stay silent
.. there had been intimations of violence
.. And yet the Clifford case is not only singularly revealing of the President’s character and his operations but also a likely harbinger of major troubles ahead.
.. Cohen said that it was his own “private transaction,” using his money, and that the Trump Organization and the Trump campaign had nothing to do with it. This never made much sense, since the Trump Organization employed him. But, even if Cohen’s story were true, it raised questions, more broadly, about where the money comes from and where it goes in Trump’s dealings.
.. President’s lawyers seem not to have considered what Clifford’s next move would be: challenging the arbitration. They had, in effect, engineered something of a win-win situation for her. Practically speaking, in order for Trump to hold Clifford to the agreement, he has to fight her in court—a process he began Friday—and come out and admit to the deal publicly.
.. CNN and the Journal reported that one of the lawyers who obtained the order was Jill Martin, another Trump Organization employee. (She was the point person in the Trump University fraud case.) A statement from the company said that, like Cohen, Martin had handled the matter only “in her individual capacity.” This paints a picture of the Trump Organization as a place where anything that the company isn’t quite supposed to do might be done as a personal favor, perhaps dressed up as an act of friendship or loyalty. It is a further sign that the special counsel Robert Mueller’s subpoena of Trump Organization business records, reported last week, might turn up a true morass.
.. With the President’s sons meeting with foreign political figures while travelling the world on business trips, with his daughter playing a diplomatic role with leaders of countries where she has commercial interests, and with his son-in-law seemingly marked as a potential recipient of foreign bribes by all and sundry, it’s important to know who pays whom, and for what.
.. The Trump team’s response to the Clifford debacle seems to have been driven by the President’s vanity, temper, and resentment. All of those have also been on display in his larger response to Mueller’s investigation, from his firing of James Comey, the F.B.I. director—an action that exposed him to possible obstruction-of-justice charges—to his apparent desire, last week, to fire Andrew McCabe
.. For a man who has built a career on bluffing and intimidation, Trump is surprisingly clumsy when it comes to those tactics, and oblivious of their costs.
.. After all, why didn’t the President sign the agreement? Did he never intend to, or could he just not be bothered? With Trump, it can be hard to tell bad will from bad lawyering. He regularly demands that his subordinates operate in accordance with what he thinks the law ought to be, rather than what it is.
.. Trump’s lawyers were considering trying to block the broadcast, now scheduled for March 25th, of an interview that Anderson Cooper conducted with Clifford for “60 Minutes.” There is no legal rationale for such prior restraint. But it wouldn’t be the first time that the President has indicated that he believes he has, or should have, the power to silence the press.
.. Then again, Trump’s circle might be trying to enforce Clifford’s confidentiality agreement not for its own sake but in order to send a message to other people, who may have signed similar agreements, about the cost of breaking them. (“In my experience, bullies have one speed and one speed only,” Avenatti told The New Yorker. “They don’t just bully one person. They bully many people.”)
Former Fox News anchor sues Bill O’Reilly, alleging defamation
A former Fox News anchor has filed a lawsuit against Bill O’Reilly, claiming that the former star Fox host defamed her when he defended himself against sexual harassment accusations.
.. Laurie Dhue, who worked for the cable news network from 2000 to 2008, was one of five women whom the New York Times reported to have received settlements related to O’Reilly’s actions and behavior
.. Dhue points to a series of public statements O’Reilly made after the Times article ran, saying the accusations were false and made maliciously.
.. O’Reilly stated in April 2017 that he parted ways with Fox due to “unfounded claims.” In June, he blamed the allegations against him on “far-left progressive organizations that are bent on destroying anybody with whom they disagree.” In October, he said that he “didn’t do anything wrong.” He also said that he had never had any complaints filed against him in more than 40 years of work.
.. “Mr. O’Reilly has never mentioned Dhue, and any attention she has received has been the result of her own actions.
.. “The irony of all this post-settlement litigation is that O’Reilly — as well is his former (and late) boss Roger Ailes — expertly used non-disclosure/non-disparagement clauses plus stacks of money to enable and excuse his workplace behavior,” The Washington Post’s Erik Wemple wrote of that lawsuit. “Yet O’Reilly lacks the sophistication — which is to say, he won’t shut up — necessary to keep the whole putrid operation glued together.”