Not only do I not understand the legal theory here, I don’t understand why Team Trump thinks CBS’s lawyers would be intimidated by it. What does leaking this accomplish?
Lawyers associated with President Donald Trump are considering legal action to stop 60 Minutes from airing an interview with Stephanie Clifford, the adult film performer and director who goes by Stormy Daniels, BuzzFeed News has learned.
“We understand from well-placed sources they are preparing to file for a legal injunction to prevent it from airing,” a person informed of the preparations told BuzzFeed News on Saturday evening…
“Why so many steps to keep the American people from learning the truth?” [Daniels lawyer Michael] Avenatti wrote in an email Sunday morning. “And to think that all this time we all thought this was a democracy where we actually valued free speech…”
Now that Trump is president, the existence of an extramarital relationship becomes a matter of public concern, according to C.J. Peters, dean of the University of Akron School of Law.
“A judicial ‘gag order’ against Ms. Daniels or CBS would constitute a ‘prior restraint’ of speech, which under First Amendment doctrine is almost never permissible,” Peters said…
“How does it look, not only legally but politically?” [attorney Karen] Tynan said. “If they succeed it is a prior restraint of speech. If they fail, they look like they lost.”
Unless Stormy’s planning to spill national security secrets, the normal legal posture would be to let CBS air its interview and face a defamation suit afterward if anything slanderous is said. It’s true that Daniels is momentarily under a restraining order issued by an arbitrator that prevents her from discussing “confidential information” about Trump, but (a) there’s no way to know yet if she revealed any confidential info in the “60 Minutes” interview, (b) the hush-money agreement that authorized the arbitration proceeding may end up being thrown out in court, and (c) if Daniels wants to spill the beans in defiance of a restraining order, that’s her problem, not CBS’s. By what logic should the network, which isn’t subject to any nondisclosure agreement, be barred from airing her comments? If they were, presumably any Trump associate subject to an NDA — which allegedly includes some of his White House aides — could be barred from revealing wrongdoing by having their admissions blocked from publication in U.S. media. Michael Cohen’s remedy for the interview should be to sue her afterward for breach of contract and seek damages for violating the agreement. If she says something defamatory and CBS airs it, then CBS could be sued too.
But of course CBS’s lawyers are aware of all this. The idea that they might wilt because a cartoonish figure like Michael Cohen is threatening to get their interview blacked out is laughable. Which makes me wonder, what’s Team Trump’s strategy in chattering about prior restraint to BuzzFeed? I think maybe it’s a way to get CBS to err on the side of excluding anything highly embarrassing or sensational that Daniels tells them, the idea being that if Cohen’s eager enough to be thinking of suing before the interview airs, he’ll certainly be eager to sue for defamation afterward.
The legal threats are also a shot across the bow of any other women who, inspired by Daniels, might be thinking of breaking an NDA they have with Trump. Increasingly that’s the only way Cohen’s legal quest to force Daniels’s silence makes sense. No one (except Melania) cares if Trump had an affair with a porn start 10 years ago. But if he had affairs with, say, a dozen women and they’re all subject to hush-money agreements and they all start coming out of the woodwork, that would be no bueno. These women presumably would have the same paper trail that Daniels has to prove they’re not lying. The sheer number of them could give the media material to keep cranking out stories for weeks. Cohen and/or Trump might suddenly have multiple lawsuits demanding relief from NDAs to contend with. And as the accumulation of former mistresses builds, Trump may start to lose some fans on the theory that his alleged affair with Daniels wasn’t a momentary lapse of judgment but how he went about living married life. This is no idle thought experiment either: Remember, Steve Bannon told Michael Wolff for his book that Trump lawyer Marc Kasowitz “took care of” a hundred women for Trump during the campaign. The number’s an exaggeration (probably) but the potential problem is clear.
Hence Cohen’s strategy: In order to keep other women quiet he needs to show them what awaits if they speak up by fighting Daniels tooth and nail, up to and including possibly getting her TV interviews blocked. But as one of the lawyers quoted above noted, that strategy could backfire. The more Cohen fights and loses — and he would certainly lose an attempt at prior restraint aimed at a major news network covering a story about the president — the more confident other would-be accusers might feel. If the Daniels hush-money agreement gets thrown out, if Daniels starts making bank for telling her story, if Cohen sues to stop CBS from airing its Daniels interview and loses, all of that is a signal to other accusers that they might not only not face serious consequences from breaking their own NDAs, they might profit from doing so. The stakes are potentially high but I don’t know if there’s an effective remedy left to Trump and Cohen. Even if they collected damages from Daniels for revealing confidential information, so what? Trump doesn’t need it. For him, their silence was never about money.
Exit question: Is Michael Cohen going to be an ex-lawyer soon?