This seems like the worst of all worlds for POTUS and Michael Cohen. They had two routes to choose from on the hush-money stuff. One: Don’t enforce the NDAs. Let Stormy Daniels and Karen McDougal and whoever else say what they want publicly about Trump. How much could it hurt, really? Maybe warn them publicly that they could be sued at any time, but don’t actually sue. The chief benefit of this approach is that neither Trump nor Cohen nor their friend David Pecker at the National Enquirer would be subject to discovery.
Two: Enforce all the deals. Daniels, McDougal, anyone else who comes forward — they all get dragged into arbitration, not necessarily because what each of them has to say is damaging in isolation but because there *may* be other women under NDAs and the cumulative effect of all of them coming out of the woodwork could inflict real political pain on POTUS. The risk here, obviously, is that each woman would do what Daniels is trying to do, removing the matter from the privacy of arbitration to the public spectacle of a courtroom. That means discovery and lots of dirty laundry potentially aired via discovery. Trump and Cohen would need to assess their jeopardy on that point if they were to go this route. The chief benefit of doing so, though, is that any other woman under an NDA who’s watching all of this play out might be deterred from coming forward. If they know Trump and Cohen will play hardball, if they know they’re going to be buried in legal bills and at risk of paying Trump millions in damages if they lose the arbitration/court case, maybe they decide that silence is golden after all.
Instead we’ve now got a hybrid approach. Trump and Cohen are suing Daniels but the Enquirer’s parent company, AMI, is *not* suing Karen McDougal. They just reached a settlement with her that frees her from the “catch and kill” deal she signed with them in 2016. Now, if you’re a secret former Trump mistress who’s mulling whether to come forward, you can talk yourself into believing that it might work out well for you no matter what happens. Maybe you’ll be let out of your contract because the other party, whether Trump, Cohen, Pecker, or all three, is terrified of the prospect of discovery. Or maybe you’ll get yourself a good lawyer like Stormy Daniels did and go on offense, winning your suit and then cashing in on your story with the tabloids or even recovering money from Trump or Cohen via a defamation claim.
At the barest minimum, whatever route Trump and Cohen chose, job one should have been to convey that they knew what they were doing legally. Make any woman under a secret NDA have reason to believe that things might go very badly for her legally if she took them on. They have … not conveyed that. Thanks to their moronic decision to enforce the Daniels deal knowing that there was a potential campaign-finance issue, Cohen’s now the target of a federal criminal investigation. If you’re a woman under an NDA, at this point why wouldn’t you challenge Cohen? By the time it’s over, the doofus will probably end up owing you money.
Under the terms of Wednesday’s settlement, American Media has the right to up to $75,000 of any future profits from [Karen McDougal’s] story about the alleged affair, which Mr. Trump denies. According to her lawyer, Peter K. Stris, Ms. McDougal can keep the $150,000 payment and the publisher will retain the rights to photographs of her that it already has.
“It’s a total win,” Mr. Stris said in an interview. “We got everything we were fighting for — she got out of the contract, gets the life rights back and owes A.M.I. nothing more.”
How strange that AMI would suddenly decided that a deal it signed less than two years ago wasn’t worth the six figures it paid McDougal. I wonder what could have influenced — oh, right:
Mr. Stris said on Wednesday that before reaching the settlement he was prepared to answer American Media’s motion to dismiss Ms. McDougal’s case with a request for a limited version of pretrial discovery, in which both sides would have been compelled to share emails and other records that could have provided information about the deal from inside American Media that would not be available through the material the F.B.I. seized from Mr. Cohen. Mr. Stris said he would ask to submit written questions to Mr. Trump, and ask for several internal documents.
The settlement precludes any of that from happening, at least in Ms. McDougal’s civil case, though Mr. Stris said he expected federal investigators to eventually secure everything they need to fully vet the process behind the deal. “I have tremendous confidence in the men and woman of the Southern District of New York,” he said, referring to the federal prosecutors investigating Mr. Cohen.
Stris and McDougal were about to expose David Pecker’s possible coordination with Trump and Cohen in killing stories that created problems for the president. That could have created legal problems for AMI: If it turned out that the Enquirer was buying up the rights to Trump dirt with no intention of printing it, arguably that would qualify as an undeclared campaign contribution just like the Stormy Daniels payoff from Cohen. At best, it would have exposed communications between AMI and Team Trump that might have embarrassed the latter. (Imagine if there was an email naming other women whose stories AMI “caught and killed” for Trump.) So think about what happened here. Karen McDougal ignored her hush-money deal with AMI, spent a full hour on television chatting with Anderson Cooper about her alleged relationship with Trump, and because of the legal jeopardy to the players on the other side, she’s now off completely scot-free. Why would any other woman out there with an NDA hesitate to speak up, particularly if they signed a deal during the 2016 campaign such that the payment might qualify as an undeclared contribution? Team Trump is over a barrel.
And the mistakes keep coming. Trump tweeted this morning:
Michael Avenatti, Daniels’s lawyer, rubbed his hands in glee:
FBI search warrants uncovering EXISTING documents and recordings showing con job after con job pulled on REAL people and very REAL American citizens (who didn’t know it). Welcome to the playing field. #whereyoubeen #basta
— Michael Avenatti (@MichaelAvenatti) April 18, 2018
In my experience, there is nothing better in litigation than having a completely unhinged, undisciplined opponent who is prone to shooting himself in the foot. Always leads to BIGLY problems…like new claims (i.e. defamation). LOL. #xmas #hanukkah #basta
— Michael Avenatti (@MichaelAvenatti) April 18, 2018
Here he is this afternoon on CNN (where he’s on the air seemingly every day) claiming that he’s going to sue Trump for defamation over the “con job” remark. The odds that he’ll win, given that Daniels is a public figure: Low. The odds that he can use this to put some new discovery pressure on Trump and maybe force him into a deposition: Better.
Stormy Daniels’ attorney says they’re likely adding a defamation claim against President Trump after he tweeted about the composite sketch, calling it a “total con job” https://t.co/lo26hvls03 pic.twitter.com/n1pSwxoUab
— The Situation Room (@CNNSitRoom) April 18, 2018