Stormy Daniels already has a defamation claim against President Trump based in part on his accusation that her story that she was threatened in a parking lot was false. (Trump says the claim of an affair was “false and extortionist.”) Now she has a splendid case.
Accusing someone of a crime is defamation per se, meaning no damages need to be proved. Avenatti will be entitled to depose Trump under oath to ask such nettlesome questions as:
- Did you have sexual relations with my client?
- Did you publicly deny knowledge of a settlement payment on national TV?
- Did you reimburse Michael Cohen for fronting the money?
- Did you break up the payments in monthly installments? Why?
- Have you made other payments to remain silent about adulterous affairs? How many? Did they all extort money from you, in your view? What are their names? How much did you pay out?
.. According to Daniels, Cohen strong-armed her into making a settlement. She, in other words, was the victim of a pressure campaign, not its instigator. Cohen would therefore need to answer questions that parallel inquiries for Trump. One or both might take the 5th — which many Americans would interpret as evidence one or both violated criminal campaign laws.
Avenatti has advantages over Robert S. Mueller III. Avenatti can needle Trump daily on TV, a tactic that already pushed Trump to lie publicly about his knowledge of the settlement. Avenatti can not be fired by Trump. Pursuant to the Paula Jones case, Daniels’s lawyer unquestionably has the right to depose Trump under oath.
There is delicious karma in this happening to Trump, who bludgeoned Hillary Clinton during the campaign for allegedly helping her husband to falsely smear women who accused the philandering president of sexual conduct. We reach karmic overload when we note that Trump has spent a lifetime threatening to and actually filing lawsuits alleging defamation.
All this was before Mr. Cohen went from hot to boiling water earlier today with the announcement that the F.B.I. had raided his New York offices. According to The Times, his maneuvers in the Daniels case formed part of the legal basis for the raid.
.. Mr. Cohen and Mr. Trump’s troubles in the hush agreement case are of their own making. First, Mr. Cohen insisted, through his lawyer, that the president was never aware of the agreement and that Mr. Cohen acted wholly on his own. Then, speaking briefly to reporters on Air Force One last Thursday, Mr. Trump, echoing Mr. Cohen, said that he knew nothing about the arrangement. In saying so, he walked directly into the buzz saw of the legal position of Ms. Daniels and her attorney, Michael Avenatti.
.. The hush agreement identified Mr. Trump as a party and required him to do a number of things. But since he insists he didn’t know about the agreement, there’s no way he could have entered into it.
.. Moreover, Mr. Trump’s avowed cluelessness implies that Mr. Cohen induced Ms. Daniels to sign the agreement through fraud — a lie about Mr. Trump’s performance of reciprocal obligations. Both of these circumstances invalidate the hush agreement’s very formation under basic contract law principles.
.. In a motion filed on Sunday in federal court in California, Mr. Avenatti seized on Mr. Trump’s asserted ignorance to bolster the argument that the agreement was never formed: “If Mr. Trump was completely unaware of Mr. Cohen’s actions, the question naturally arises as to how it would be possible for a ‘meeting of the minds’ to have occurred between parties where one of the parties does not even know about the existence of the agreement.”
.. Inconveniently for the president, Ms. Daniels’s position turns on questions of fact. Did Mr. Trump and Mr. Cohen ever discuss Ms. Daniels? Was Mr. Trump aware of the obligations he had ostensibly undertaken? Why did Mr. Trump not sign on the signature line? Was he 100 percent ignorant about the agreement?
.. The standard course for resolving these sorts of factual disputes is to first permit the parties to take discovery. Mr. Avenatti has asked the court for a two-hour deposition of both Mr. Trump and Mr. Cohen. Normally a request to depose the president would seem like a nuisance move, quickly rebuffed. Here, though, it is hard to see how the court resolves the factual issue without hearing Mr. Trump’s version of events... The president cannot remotely afford to testify under oath under either of these settings. The potential for perjury is rife. Indeed, while there would no doubt be a major dust-up in court, the question whether he had sex with Ms. Daniels is probably fair game. That’s because it would be highly relevant to the issue of whether he knew about the agreement at all... If the federal judge orders either the deposition or the jury trial, then look for Mr. Trump, tail firmly between his legs, to abandon any effort to enforce the hush agreement... At that point, look for a major book deal for Ms. Daniels and a talk-radio and television blitz... But this wouldn’t be remotely the end of the road for the duo, whose litigants’ embrace is likely to continue for years. Once the hush agreement is a dead letter, Ms. Daniels would be able to go on the offensive, suing Mr. Trump for defamation. And why wouldn’t she? The legal dispute has been the biggest boon of her career, and both Mr. Cohen (whom she already is suing for defamation) and Mr. Trump have treated her like dirt... All of this arises while Mr. Trump is facing, with no legal team to speak of, the all-consuming distraction of the most formidable criminal probe any president has ever faced... there is the distinct possibility that the president’s legal clinch with Stormy Daniels will outlast his presidency.