By Erik Larson / Bloomberg
March 8, 2018

If porn star Stormy Daniels was looking for a way to air details of her alleged affair with Donald Trump, this week’s lawsuit did the trick. But she may have a tougher time making a legal case that would free her to tell all.

Daniels, who accepted $130,000 under a confidentiality agreement struck with Trump’s personal lawyer days before the 2016 presidential election, now wants a judge to void it. Because Trump didn’t sign the deal, she argues in a suit filed March 6 in Los Angeles, she shouldn’t be bound by its clause requiring disagreements to be settled in private arbitration.

Not only could it be tricky for Daniels to prevail, according to several legal experts, the suit could also expose her to accusations that she breached the contract herself.

Walking away with the cash and keeping silent about the alleged affair — at least for a time — gave the appearance that Daniels considered the agreement a done deal even without Trump’s signature, said Michael Willemin, a New York employment lawyer with Wigdor LLP who isn’t involved in the case.

“At least for a few months, it appeared that all parties were relying on the agreement as if it had been formally consummated,” Willemin said by telephone. “The way that the parties act is evidence of mutual consent.”

Daniels, whose real name is Stephanie Clifford, claims she had an affair with Trump that began in the summer of 2006 in Lake Tahoe and continued well into 2007, a claim denied by Trump and the White House.

The confidentiality agreement, a copy of which was attached to the complaint, reveals the possible existence of text messages and photos stemming from their relationship. It doesn’t mention the alleged affair itself, though, meaning Trump and his legal team will be free to defend the contract’s validity in court filings without discussing the existence of any relationship.

According to the complaint, the dispute has already been the subject of private arbitration. White House Press Secretary Sarah Huckabee Sanders told reporters Wednesday that Trump had already won a private litigation against Daniels. Records obtained by Bloomberg News show that Cohen won a temporary restraining order against Daniels at a closed-door arbitration proceeding on Feb. 27.

That arbitration was a “bogus” proceeding that was designed to intimidate Clifford, according to the complaint. It says Trump’s personal lawyer, Michael Cohen, surreptitiously initiated the arbitration proceeding without giving Clifford notice or “basic due process.”

“She intends on setting the record straight,” Daniels’s lawyer, Michael Avenatti, said Wednesday in an email.

Kate Rhodes, an employment attorney with Epstein Becker & Green PC, said the agreement makes it clear that counter-parties can sign the contract, and it’s signed by Cohen. “Because she signed the agreement and took the money, under most jurisdictions that would be enough to enforce it against the parties,” Rhodes said.

Louis Ciavarra, head of litigation at Bowditch & Dewey in Worcester, Massachusetts, agreed that Daniels’s case is pretty weak.

“It’s the agreement that matters — the document is just the best evidence of what the terms are,” Ciavarra said in a phone call. “So what is the plaintiff saying there? That she never had an agreement?”

Even if she fails to nullify the deal, Willemin said, Daniels may be accomplishing part of her goal by getting once-secret details into the public eye, “and at least give the idea that there’s more to the story than Mr. Cohen has been giving for last couple months.”

That could come at a price, given that Daniels attached the secret agreement to a public complaint.

“I think there’s a very strong argument that she breached the agreement,” Rhodes said. If that were proven in court or in arbitration, “she’d have to very well likely return the money that was given to her and may be subject to other penalties.”

Not all legal experts agree she’s in a tough spot.

Brian Wagner, a criminal defense attorney and former prosecutor in Brooklyn, New York, said the suit presents the possibility that Trump would eventually have to assert in court that he was the intended beneficiary of the agreement, and why.

“That puts him in a precarious political situation because he’d have to either own up to it and say ‘this was me’ or deny it,” Wagner said in a phone call. “He can’t have it both ways.”

The suit includes an alternative reason for the judge to nullify the agreement if the missing-signature argument doesn’t cut it. Daniels claims the agreement is also illegal because it violates public policy — an apparent reference to claims that Cohen’s payoff to the porn star may have been attempt to sway the election in violation of federal campaign finance law.

“If they can show this whole thing is illegal, based on the federal election law, then generally courts are not going to enforce contracts that encourage illegal behavior,” said Domenic Romano, a corporate and entertainment attorney in New York. “That is her strongest argument.”

The case is Clifford v. Trump, BC696568, Los Angeles County Superior Court.

Contact us at editors@time.com.

SPONSORED FINANCIAL CONTENT

You May Like

EDIT POST