A leftover from yesterday. Remember, he and Michael Cohen are in a Catch-22. If Trump knew about the arrangement with Daniels, that would place him in the middle of a hush-money deal with a porn star and would suggest (without proving) that he had something to do with the $130,000 that Cohen used to pay her off. If it turns out that money came from Trump and it’s deemed to have been a campaign contribution, POTUS broke the law by not reporting it at the time.
If Trump *didn’t* know about the deal with Daniels, that would mean one of two things. Either Michael Cohen, acting as Trump’s lawyer, neglected to tell his client about a deal he signed on the client’s behalf, which is most unethical. Or, if Cohen wasn’t acting as Trump’s lawyer for purposes of the deal, then one of the ostensible parties to the deal — Trump — never agreed to it. And since the terms of the hush-money contract created certain obligations for Trump, the fact that he didn’t sign it or even know about it means that he can’t be bound by its terms and therefore Daniels hasn’t received the full consideration due to her. The deal is unenforceable, just as she and her lawyer, Michael Avenatti, claim.
Jeremy Stahl of Slate argues that Trump just lost his case by making this claim on Air Force One:
Basically, Trump and his apparent representatives are arguing both sides. In public, Trump and his representatives are denying that he knew anything about the agreement. The implication of this argument would be that he is not liable for any potential campaign finance reporting questions around it, or any political or marital fallout. But in court, his lawyer’s shell company’s lawyer is apparently arguing that Trump was a party to it, and so it is a consummated contract, and so the case should still go to arbitration.
“It’s either he chooses to arbitrate, or he says ‘I’m not one of the parties’ and they lose that arbitration agreement and that arbitration settlement,” Georgetown Law professor J. Maria Glover, an expert in arbitration law, told me last week.
“They’re trying to have it both ways,” Glover added. “I don’t in the end think they can.”
Is it a valid contract or isn’t it? If it is, it can go to arbitration and Daniels can be held liable for breaching it — but that means Trump had to have known about it, which he claims he didn’t. If he didn’t know about it, that means arguably this entire mess is of Michael Cohen’s making and POTUS is just an innocent bystander caught in the crossfire — but it also means the contract is invalid, since Trump can’t be bound by the terms of an agreement he didn’t agree to. And if Trump isn’t bound, Daniels isn’t either.
Guess which position Avenatti takes:
We very much look forward to testing the truthfulness of Mr. Trump's feigned lack of knowledge concerning the $130k payment as stated on Air Force One. As history teaches us, it is one thing to deceive the press and quite another to do so under oath. #searchforthetruth #basta
— Michael Avenatti (@MichaelAvenatti) April 5, 2018
Good (actually GREAT) things come to those who wait!!! The strength of our case just went up exponentially. You can't have an agreement when one party claims to know nothing about it. #nodiscipline #thanksforplaying #basta
— Michael Avenatti (@MichaelAvenatti) April 5, 2018
Eh. Unless Daniels has highly embarrassing A/V evidence of her and Trump together (which seems unlikely, as she claims they only slept together once), there’s really nothing left for him to lose in court at this point. She already gave the basics of her story to “60 Minutes”; a more detailed version is out there on the website of In Touch magazine. The legal battle, I’ve assumed, is really just a matter of raising the cost of speaking up to Daniels to discourage other former mistresses from going public. The political consequences, although also small, loom larger than the legal consequences. For instance:
As allegations continue to swirl about the president and a payout to a porn star to cover up a sexual encounter, evangelical leaders are organizing a sit-down with President Trump in June, four sources with knowledge of the planned meeting tell NPR.
“We’re very concerned” about the allegations, said a leader of a faith-based ministry. The leader is involved in hosting the gathering, which organizers are aiming to take place June 19 at Trump International Hotel in Washington, D.C. The source said the combination of the Stormy Daniels sex-scandal allegations and Trump’s continued reputation for divisive rhetoric could suppress evangelical turnout in the November midterm elections…
[A] source said the president is likely to be asked about the women during private discussions in at least a “sidebar conversation.”
What I can’t tell but would love to know is how many social conservatives believe that Trump cheated on his wife, whether with Daniels or someone else, and simply don’t care versus how many really do believe his denials. It shouldn’t matter to the first group if Daniels ends up producing smoking-gun proof of a relationship; they’ve already accepted that Trump probably strayed and have made peace with it. The second group might care, though. It’s one thing for Trump to lie to Democrats or the hated media, but to look God-fearing people in the eye and lie to them too? Maybe he’s not quite the pillar of rectitude that they thought.
It occurs to me that there would have been an easy way for POTUS to spin the Daniels mess from the beginning that would have (mostly) disarmed her and strengthened his bond to his base. He could have said, “I’m not going to comment on mistakes I’ve made in the past. Suffice it to say, I’m not a perfect person. But I’ve become a better person in the last few years thanks to the moral strength I’ve gathered from my friends and advisors in the Christian community.” If Daniels had proceeded with her media tour after that, she’d be seen (by Trump supporters anyway) as kicking a man who’d repented. And whether she was telling the truth or not would be of no consequence: He’d already admitted error, if not with her specifically than with others. That would have been the savvy play for him. But I think his first and last instinct when confronted with scandal is simply to deny and turn it into a litmus test for his fans. “Who are you going to believe, me — or Them?” If Daniels has proof, some who have been answering that question with “you, of course, Mr. President!” will think twice about answering the same way with the next scandal, whether it’s sexual, financial, or what have you.
WATCH: "We think this is basically game over."@MichaelAvenatti, Stormy Daniels' attorney, says any confidentiality agreement is essentially dead after the president's on-camera comments on Air Force One today. #LastWord pic.twitter.com/BhT8JSAmet
— The Last Word (@TheLastWord) April 6, 2018