The Stormy Daniels case has put President Trump in more trouble than it might seem on the surface. Most of that is because Daniels is a porn star who shtupped him months after his wife gave birth, spanked him with a magazine that had his face — next to his daughter’s — on the cover, endured hours of shark-bashing, and has alluded not so subtly to having her own kompromat on the guy in the form of pictures or video. I’m not going to pretend I’m not taken in by this stuff, because I think any honest person, no matter how serious, would at least raise an eyebrow if they heard this stuff about an acquaintance, let alone about a man who would go on to become President of the United States. But these issues are at the end of the day private matters between that man, his family, and his porn star mistress. The time for sensationalism is long past, and serious people, if they want to be taken seriously, have to draw a line between the lecherous and the litigable.
Ironically it’s Daniels and her attorney who have made it difficult to distinguish the serious from the smut. They know American media will chase the raw meat, if you’ll forgive the phrase, so they haven’t focused their PR campaign so much on the consequential matters as on the details they know will keep this story in the headlines. That’s a big reason why this story hasn’t faded the way so many similar stories about Trump have.
More ironic than that, though, Trump’s own lawyer, Michael Cohen, has done the other work for them and made Trump’s criminality, as well as his own, pellucid. And now Trump’s lawyer’s lawyer, who might be even worse than Cohen, just went on national television and basically incriminated his own client, as well as his client’s client. There’s real evidence of criminality here, and Trump, as well as his lawyer (and now his lawyer’s lawyer), might have to testify under oath. And considering this is about finances, Trump’s taxes might be fair game in discovery. They’re also all probably going to perjure themselves and each other.
So here’s that big picture: They’re all publicly spanking themselves with pictures of themselves.
Half of a Contract
The whole case hinges on the non-disclosure agreement that Daniels signed. I’ll try to keep this as clean as possible (without ignoring key arguments), because for the casual reader the legal technicalities here can be maddening. Here are the basics.
1. Cohen paid Daniels $130,000 to sign a contract promising she wouldn’t disclose the affair she had with Trump in 2006.
2. Importantly, he paid her a few weeks before the election. Such a payment made on Trump’s behalf would violate federal campaign finance law, because even though on the surface this appears to have nothing to do with the campaign, Trump’s candidacy would benefit from such a payment. This is called an “in-kind” donation.
3. Cohen would be guilty of the violation: He says Trump didn’t know about the payment or contract, and that he, Cohen, made the payment out of his own pocket.
4. To get around the campaign finance law, Cohen created an LLC to act on Trump’s behalf in the contract. (Called a “third-party” contract.) Cohen claims Daniels entered into the contract not with Trump, but with this LLC.
5. But even though Trump is named (a pseudonym, David Dennison) in the contract and stands to benefit, and in order for the contract to be successful he himself must refrain from saying and doing certain things, he didn’t sign the contract. There’s a signature line for him, and it’s blank.
Cohen’s argument: Hey, this has nothing to do with Trump!
Everyone else: Um.
Well, everyone else but Cohen’s lawyer. Which brings us to…
As famously said in Breaking Bad, sometimes you need a criminal lawyer, and sometimes you need a criminal lawyer.
And so Cohen’s lawyer, David Schwartz, took to national TV to incriminate his client a few dozen times. Here are the most surprising things he admitted.
1. Schwartz: “The president was not aware of the agreement. At least, Michael Cohen never told him about the agreement.”
Whoops. Shoe missing, will drop. And, given Schwartz’s next statement, there are probably more than a few other Cinderellas out there.
2. Schwartz: “There were a ton of matters that took place that Michael fixed…”
These kinds of contracts and hush payments were executed routinely. But Schwartz wasn’t done with this sentence.
3. ”...and Donald Trump wasn’t involved in every single matter.”
These contracts were so routine, in fact, that Cohen (apparently) didn’t even feel the need to tell Trump they had to make yet another hush payment to a former mistress. Even in the final weeks of the campaign, apparently, it wouldn’t have been worth Cohen notifying Trump about a woman who was threatening to come forward in an effort to sink his candidacy.
But Schwartz still wasn’t done. (This was all in the same interview, by the way, which Schwartz didn’t have to do.)
4. Schwartz: “This happened all the time… Michael and I would be at dinner, and the boss would be calling him all the time.”
This a bold move: Immediately contradicting himself. Trump directed a lot of Cohen’s “fixing.” So yeah, it’s quite possible, and probably the case, that Trump told Cohen to take care of the Daniels problem, but was experienced enough to know that after the order he would stay out of the loop to maintain plausible deniability.
5. In a separate interview with CBS News, Schwartz was posed this question: ”[Cohen] took out a home equity loan to pay off Stormy Daniels?”
Schwartz: “To get the money quickly.”
Whoops. Not only does this show just how obsequious Cohen is, and how desperate he was to silence Story, but as former federal prosecutor Renato Mariotti points out:
In Schwartz’s defense, though, Cohen admitted as much in his own official statement:
But Trump? Did Anyone Break the Law?
At minimum, Cohen is cooked. He clearly violated campaign finance law, and he definitely violated the rule Mariotti pointed out above. He’ll get disbarred for that, and he seems to know this.
But what about Trump?
Well, Daniels’s lawyer has proof that the contract went through Cohen’s Trump Tower office, and that Cohen discussed the payment through official Trump Organization email addresses. This seems to prove that Cohen was acting in his capacity as counsel at the Trump Organization, i.e., counsel for Trump.
Still, Cohen maintains the contract was between Daniels and the LLC, and Trump wasn’t a party to it. (As the blank signature line supposedly evinces.) We should therefore believe that Donald Trump and the Trump Organization weren’t involved at all: The agreement was strictly between Daniels and this LLC, so Trump is clean.
There are a few obvious problems here. First, it would be far-fetched for any judge to believe Cohen didn’t make the payment on Trump’s behalf. After all, it’s Trump himself, and not the LLC, who would stand to benefit the most from this contract. It also seems that the LLC’s only interest in this agreement would be to protect the Trump campaign. And because Cohen seems to have acted as counsel at the Trump Organization, this directly implicates Trump (and possibly other Trump Org directors such as Ivanka, Eric, and DJTJ) in violating campaign finance law. This is why Cohen has been so adamant about having made the payment himself, out of unfathomable, criminal fealty to his boss.
But if Trump didn’t sign the contract, he didn’t enter into it. So he’s cool. Right?
This is Cohen and Schwartz’s main argument: it was a third-party contract that, even though it protected Trump, didn’t need Trump’s participation. Two things: First, even if Trump wasn’t party to the contract he’s the only one who can enforce his end of it, which was also to keep quiet.
The LLC can’t promise Trump’s silence, because the LLC isn’t Trump. Therefore such a contract, without Trump’s participation, is void. Additionally it’s an ethics violation for a lawyer to enter his client into a contract without his client’s consent. But this brings us back to that first problem: Though it’s possible that Trump might have (and probably did) grant Cohen a broad power of attorney to enter into such contracts on his behalf, Cohen also isn’t Trump. He doesn’t operate Trump’s brain or voice. So even if that power of attorney exists, it’s impossible for someone to promise someone’s silence without their knowledge or consent.
Two possible conclusions: Either the contract is void, or Trump was party to it. This means Cohen and Trump can do one of two things:
1. Act on the legal authority they claim the contract gives them by taking Daniels to court or responding to her lawsuit; or
2. Admit the contract is flawed and void.
Neither option is good. If they choose to go to court, they’ll likely be deposed, meaning Trump will have to testify under oath. If he lies, which is the odds-on favorite, then we’ll have the exact scenario that led Congress to impeach Bill Clinton in 1998 for lying about sexual indiscretion. It might be even more problematic considering the case raises questions about how involved Trump was in the exchange of money, reimbursements, etc. In other words, there might be cause to obtain Trump’s tax returns. It’s worth noting that Daniels has started talking, and already pressed a lawsuit. This is a dare for Cohen to act on what he claims are his legal grounds.
If Cohen et al don’t act on the contract, then Daniels goes public with her evidence, which is apparently damning enough to have kept the notoriously aggressive Trump quiet. That won’t be pretty, and it won’t be healthy for the President.
Even worse, though, is what this case might let loose. To go back to what Cohen’s lawyer said, “This happened all the time… Michael and I would be at dinner, and the boss would be calling him all the time.”
This case might expose a fatal flaw in who knows how many similar contracts Cohen executed over the years. I bet they’re nervous.
Oh yeah, and Mueller is reportedly looking into Cohen’s role in the Russian attack on our election.
Trump’s lawyers are pretty bad, and his lawyer’s lawyer is pretty bad. But you’ll have to forgive them at least a little bit, because at the end of the day it’s all about protecting their client from himself, and it seems more clear by the day that there’s really no way to do that without going to jail yourself.