In 2009–2016, Harder represented numerous celebrities in cases over misappropriation of their names and likeness, including Sandra Bullock, George Clooney, Bradley Cooper, Jude Law, Mandy Moore, Liam Neeson, Julia Roberts and Reese Witherspoon. Harder also won four different ICANN arbitrations for Sandra Bullock, Cameron Diaz, Kate Hudson and Sigourney Weaver, respectively.
In 2017, Harder threatened to sue the New York Times on behalf of Harvey Weinstein, the day after the Times published the first story about him allegedly engaging in harassment. The lawsuit was never filed and Harder withdrew from the representation the next week.
In 2017, Harder represented First Lady Melania Trump in a defamation case against the Daily Mail, which resulted in a $2.9 million settlement payment to Trump, and a public retraction and apology by the Daily Mail to her. In 2018, he also represented the President in legal demand letters sent to political consultant/media executive Steve Bannon and author Michael Wolff. Harder also represented Jared Kushner in connection with a Vanity Fair article covering the 2017 Special Counsel investigation. He represented the Trump campaign in a legal action taken against Omarosa Manigault Newman following the publication of her book, Unhinged.
In 2018, Harder represented President Trump in a defamation lawsuit filed by Stormy Daniels (real name Stephanie Clifford). On October 15, 2018, the U.S. District Court granted an anti-SLAPP motion filed by Harder, dismissing the lawsuit with prejudice and awarding President Trump reimbursement of his attorneys fees against Stormy Daniels. On December 11, 2018 the court ordered Stormy Daniels to pay President Trump 75% reimbursement of his attorneys fees or $292,052.33, plus a $1000 sanction on Stormy Daniels as well. “The court’s order,” Harder said, “along with the court’s prior order dismissing Stormy Daniels’ defamation case against the President, together constitute a total victory for the President, and a total defeat for Stormy Daniels in this case.” 
In 2019, Harder sent a letter to CNN on behalf of President Trump and his campaign claiming CNN was violating the federal Lanham Act by marketing itself as “fair and balanced” after multiple CNN employees reportedly admitted the company was strongly biased against the President.
In 2019, Harder sued Oakley on behalf of US Olympic gold medalist Shaun White, for using his name and image beyond the term permitted by an earlier contract between them.
What the strange war over “David French-ism” says about the right.
In March the religious journal First Things published a short manifesto, signed by a group of notable conservative writers and academics, titled “Against the Dead Consensus.” The consensus that the manifesto came to bury belonged to conservatism as it existed between the time of William F. Buckley Jr. and the rise of Donald Trump: An ideology that packaged limited government, free markets, a hawkish foreign policy and cultural conservatism together, and that assumed that business interests and religious conservatives and ambitious American-empire builders belonged naturally to the same coalition.
This consensus was never as stable as retrospective political storytelling might suggest; even successful Republican politicians inevitably left many of its factions sorely disappointed, while conservative intellectuals and activists feuded viciously with one another and constantly discerned crises and crackups for their movement. But the crisis revealed or created (depending on your perspective) by our own age of populism seems more severe, the stresses on the different factions more serious, and it is just possible that the longstanding conservative fusion might be as dead as the First Things signatories argued.
Among them was Sohrab Ahmari, the op-ed editor at The New York Post, whose public career embodies some of those shifts and stresses: An immigrant whose family fled the Islamic Republic of Iran, he began his career on the right as an ex-Marxist secular neoconservative at The Wall Street Journal editorial page and has since become a traditionally inclined Catholic (a journey detailed in his striking memoir, “From Fire, By Water”) and also more Trump-friendly and populist into the bargain.
In the last week Ahmari has roiled the conservative intellectual world with a critique of something he calls David French-ism, after David French of National Review, another prominent conservative writer. This controversy, like the debate over Tucker Carlson and capitalism earlier this year, has been a full-employment bill for conservative pundits. But it probably seems impossibly opaque from the outside, since superficially Ahmari and French belong to the same faction on the right — both religious conservatives, both strongly anti-abortion, both deeply engaged in battles over religious liberty (where French is a longtime litigator). Indeed it is somewhat opaque even from the inside, prompting conservatives engaging with the dispute to wonder, “What are we debating?”
I’m going to try to answer that question here. We’ll see how it goes.
Basically the best way to understand the Ahmari-French split is in light of the old fusion, the old consensus, that the First Things manifesto attacked. French is a religious conservative who thinks that the pre-Trump conservative vision still makes sense. He thinks that his Christian faith and his pro-life convictions have a natural home in a basically libertarian coalition, one that wants to limit the federal government’s interventions in the marketplace and expects civil society to flourish once state power is removed. He thinks that believers and nonbelievers, secular liberals and conservative Christians, can coexist under a classical-liberal framework in which disputes are settled by persuasion rather than constant legal skirmishing, or else are left unsettled in a healthy pluralism. He is one of the few remaining conservatives willing to argue that the invasion of Iraq was just and necessary. And he opposes, now as well as yesterday, the bargain that the right struck with Donald Trump.
Ahmari, on the other hand, speaks for cultural conservatives who believe that the old conservative fusion mostly failed their part of the movement — winning victories for tax cutters and business interests while marriage rates declined, birthrates plummeted and religious affiliation waned; and appeasing social conservatives with judges who never actually got around to overturning Roe v. Wade. These conservatives believe that the current version of social liberalism has no interest in truces or pluralism and won’t rest till the last evangelical baker is fined into bankruptcy, the last Catholic hospital or adoption agency is closed by an A.C.L.U. lawsuit. They think that business interests have turned into agents of cultural revolution, making them poor allies for the right, and that the free trade and globalization championed by past Republican presidents has played some role in the dissolution of conservatism’s substrates — the family, the neighborhood, the local civitas. And they have warmed, quickly or slowly, to the politics-is-war style of the current president.
But what, specifically, do these conservatives want, besides a sense of thrill-in-combat that French’s irenic style denies them? I don’t think they are completely certain themselves; in a useful contribution to the Ahmari affair, R.R. Reno, the editor of First Things, describes their animating spirit as a feeling that something else is needed in American society besides just classical-liberal, limited-government commitments, without any certainty about what that something ought to be.
Still, you can see three broad demands at work in their arguments. First, they want social conservatives to exercise more explicit power within the conservative coalition.
This may sound like a strange idea, since, after all, it is social conservatism’s growing political weakness, its cultural retreat, that led the religious right to throw in with a cruel sybarite like Trump. But there’s a plausible argument that even with its broader influence reduced, religious conservatism should still wield more power than it does in Republican politics — that it outsources too much policy thinking to other factions, that it goes along with legislation written for business interests so long as the promised judicial appointments are dangled at the end, and that it generally acts like a junior partner even though it delivers far more votes.
The case against the president would be far stronger than the case against John Edwards was.
This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn’t a crime; and they say, even if it was a crime, it wasn’t a biggie — there are lots of crimes, so what, who cares.
The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.But the case is actually harmful for Trump — especially what the judge ruled. Edwards repeatedly argued that the payments were not campaign contributions because they were not made exclusively to further his campaign. The judge rejected this argument as a matter of law, ruling that a payment to a candidate’s extramarital sexual partner is a campaign contribution if “one of” the reasons the payment is made is to influence the election.
As a legal matter, that aspect of the Edwards case is what matters now — and it’s damning for Trump. It provides a precedent that other courts could follow in any prosecution arising out of the hush-money schemes Trump paid: The president could face criminal charges for conspiring with Cohen to make the payments because the evidence shows the payments were made, at least in part, for campaign purposes. As for what the jury concluded in the Edwards case, there’s good reason to believe that the evidence in a criminal case against Trump would be much stronger.
The timing of the payments in Edwards’s case appeared to relate to paying for expenses from the birth and support of the child he fathered with his partner rather than to any campaign activity, and payment began before the campaign did. In contrast, Trump’s payments to his former sexual partners were made many years after the actual affairs. The payments to Daniels, whose given name is Stephanie Clifford, were made in the final weeks of the 2016 campaign, immediately after the “Access Hollywood” scandal broke, when Daniels was in negotiation with national media outlets to go public with her story. This timing strongly suggests that the payments were campaign-related.Edwards argued that he didn’t know anything about the payments and that, regardless, the payments in his case were intended to keep news of the affair and pregnancy from his wife — not to keep the information from voters. Trump tried the first tactic, but Cohen’s tapes eviscerated that argument. There is no reason to think that Trump’s attempt to paint these as personal payments is any less of a lie than his attempt to say he didn’t know about them... Unlike with Edwards, prosecutors have noted evidence that Cohen “coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” If Cohen had made the payments as a purely personal matter for Trump, separate and apart from Trump’s candidacy, Cohen would not have consulted with the campaign about doing so. Further, Trump was first aware of threats to publish information about this affair in 2011, when his youngest child had just been born to his new wife and at the time made no offers of money to keep the news quiet. What was different in 2016 was the election.
In the Edwards case, there was a paucity of evidence. A key witness, Bunny Melon, was 101 years old and too frail to show up at trial. There were no written legal agreements providing money in exchange for silence, as there are in Trump’s case, and no threats by the mother of the child to go public immediately if the funds were not received. That’s why one juror told the media that the evidence wasn’t there to show even that Edwards intended the money to go to Rielle Hunter. In contrast, in a bombshell disclosure this week, the public learned that AMI, the parent corporation of the National Enquirer, is cooperating with the prosecution and has stated that the payments were made to influence the 2016 election. And even more worrisome for Trump, reports emerged Thursday that Trump was the third person in the very room where Cohen and David Pecker (the head of AMI) discussed the hush money payments — making it very hard for Trump to assert a non-campaign-related purpose.
Trump’s legal adviser Rudy Giuliani has argued that the jury in the Edwards case vindicated Edwards, but, in fact, the jurors acquitted him on only one criminal charge and deadlocked on the others. And at any rate, as Giuliani (a former federal prosecutor before he was mayor of New York) should know, criminal jury verdicts are not legal precedents. The Edwards jury, applying the law to the particular facts of that case, did not find Edwards guilty beyond a reasonable doubt. This is 100 percent irrelevant to whether Cohen’s guilty plea proves that Trump broke the law based on very different facts.
The final Trump defense being floated, that everyone breaks the law, fares no better. As its chief expositor, Sen. Orrin G. Hatch (R-Utah), put it, “I don’t care” if the law has been broken, “all I can say is he’s doing a good job as president.” He added, “The Democrats will do anything to hurt this president. Anything.”
As individuals who have devoted their lives to nonpartisan enforcement of the law, we cannot think of a more dispiriting statement. Hatch is wrong about every aspect of this statement. The accusations against Trump come from career prosecutors in the U.S. Attorney’s Office for the Southern District of New York (otherwise known as Trump’s own Justice Department). But the more important point is this: We will rue the day a senator trotted out such callousness about federal felonies.
The whole idea of our criminal justice system is to enumerate those offenses that are so egregious that they demand serious jail time. Those felonies are the bread and butter of our criminal justice system. Of course, every criminal defendant seeks to minimize his crimes. But such defendants don’t have a cheering squad composed of United States senators. If Trump wants to argue he didn’t commit the crimes, as he used to assert in April, fine. He’s entitled to that defense. But the grievous minimization of serious campaign finance violations by members of Trump’s political party further corrode our commitment to our age-old ideal of being a “government of laws, and not of men.” If Hatch thinks too much activity has been criminalized, he is in a welcome position to change the laws as a member of the Senate. He shouldn’t denigrate the law in the process. After all, the campaign disclosure requirements at issue here were enacted by Congress (as key post-Watergate reforms after President Richard Nixon’s personal lawyer Herbert Kalmbach went to prison for paying hush money to potential witnesses out of secret cash campaign contributions).
The bad arguments being floated in Trump’s defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.
The prosecutor is twisting campaign-finance law.
Donald Trump’s wayward counsel, Michael Cohen, was sentenced today as part of a plea bargain with the government. As part of that settlement, Cohen has admitted to criminal violations of federal campaign-finance law and has implicated President Trump in those violations. The press is ablaze with headlines trumpeting the president’s possible involvement in two felony campaign-finance violations. The source of these violations are Mr. Cohen’s arranging — allegedly at Trump’s direction — hush-money payments to women alleging long-ago affairs with the 2016 presidential candidate.
The Federal Election Campaign Act holds that an “expenditure” is any “purchase, payment, loan, advance, deposit or gift of money, or anything of value, for the purpose of influencing any election for Federal office.” According to Cohen and the U.S. Attorney, the hush-money payments were, it appears, made in the hopes of preventing information from becoming public before the election, and hence were “for the purpose of influencing” the election. This means that, at a minimum, they had to be reported to the Federal Election Commission; further, if they were authorized by Mr. Trump, they would become, in the law’s parlance, “coordinated expenditures,” subject to limits on the amounts that could be spent. Since the lawful contribution limit is much lower than the payments made, and the payments were not reported, this looks like an open and shut case, right?
Well, no. Or at least not in the way some might presume. To the contrary, the law — following our common sense — tells us that the hush-money payments outlined by the U.S. Attorney are clearly not campaign expenditures. There is no violation of the Federal Election Campaign Act.So what does it mean to be “for the purpose of influencing an election”? To understand this, we read the statutory language in conjunction other parts of the statute. Here the key is the statute’s prohibition on diverting campaign funds to “personal use.” This is a crucial distinction, because one of the primary factors separating campaign funds from personal funds is that the former must be spent on the candidate’s campaign, while the latter can be used to buy expensive vacations, cars, watches, furs, and such. The law defines “personal use” as spending “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” So a candidate may intend for good toothpaste and soap, a quality suit, and a healthy breakfast to positively influence his election, but none of those are campaign expenditures, because all of those purchases would typically be made irrespective of running for office. And even if the candidate might not have brushed his teeth quite so often or would have bought a cheaper suit absent the campaign, these purchases still address his underlying obligations of maintaining hygiene and dressing himself.
The settlements in this hypothetical are made “for the purpose of influencing the election,” yet they are not “expenditures” under the Federal Election Campaign Act. Indeed, if they were, the candidate would have to pay for them with campaign funds. Thus, an unscrupulous but popular businessman could declare his candidacy, gather contributions from the public, use those contributions to settle various preexisting lawsuits, and then withdraw from the race. A nice trick!
When faced with the vague, sweepingly broad “for the purpose of influencing any election” language, the Supreme Court has consistently restricted its reach to brightly defined rules. For example, in determining whether a public message was an “expenditure” made “for the purpose of influencing any election,” it has construed the later phrase to apply only to messages “expressly advocating” the election or defeat of a candidate, such as “vote for,” “vote against,” “defeat,” “re-elect,” and the like, or to other clearly defined messages that are the “functional equivalent” of that express advocacy.
In short, Michael Cohen is pleading guilty to something that isn’t a crime. Of course, people will do that when a zealous prosecutor is threatening them with decades in prison. But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.
In A Man for All Seasons, Sir Thomas More’s future son-in-law, Roper, states that he would “cut down every law in England” if it would enable him to catch the devil. To which More responds,
And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
We do ourselves no service by distorting and misapplying our campaign-finance laws in the hope of bagging Donald Trump.Comments: