Editor’s Note: Caroline Polisi is a federal and white-collar criminal defense attorney in New York. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime network, providing live legal analysis on high-profile court cases. The views expressed in this commentary are her own.
Making an appearance on “Jimmy Kimmel Live” after President Trump’s State of the Union Address on Tuesday night, Stephanie Clifford, aka “Stormy Daniels,” all but explicitly verified the existence of a nondisclosure agreement that has been a source of contention and speculation about her alleged sexual encounter with the President.
While the entire Kimmel/Clifford encounter was cringeworthy for reasons that far surpass its potential legal ramifications for Ms. Clifford (at one point, Kimmel’s aggressive questioning took such a perverse bent that Ms. Clifford asked Kimmel in disbelief, “What is wrong with you?”), the issue of the NDA was particularly precarious:
Kimmel: “Do you have a nondisclosure agreement?”
Clifford: “Do I?”
Kimmel: “You can’t say whether you have a nondisclosure agreement, but, if you didn’t have a nondisclosure agreement, you most certainly could say ‘I don’t have a nondisclosure agreement,’ yes?”
Clifford: “You’re so smart, Jimmy.” (audience applause)
Kimmel: “Thank you very much.”
In an attempt at damage control, Clifford’s attorney, Keith Davidson, sent the Guardian an email stating that Clifford “was having fun on Kimmel and being her normal playful self.”
From a purely legal vantage point, Ms. Clifford could well have violated her NDA because – let’s be honest – any reasonable person watching the interview could discern from Clifford’s comments and demeanor that she has one. In legal terms, a judge could conclude that, based on a totality of the circumstances, the interview constituted an indirect representation that such an agreement exists.
And a prohibition on acknowledgment of the existence of the NDA is likely a part of the NDA itself (stay with me), because the logical conclusion thereof, of course, is that Clifford in fact had a consensual affair with Donald Trump in 2006, as she detailed in her original 2011 interview with In Touch.
Otherwise, why have a nondisclosure agreement in the first place?
It therefore comes as no surprise that Michael Cohen, Trump’s personal lawyer, allegedly arranged for $130,000 to be paid to Ms. Clifford in the month leading up to the presidential election in exchange for her silence – such agreements are not uncommon when it comes to celebrities.
But Clifford is not remaining silent, and that presents Cohen with an interesting dilemma. What, if anything, is he going to do about it? Moving forward with a full-fledged enforcement of the agreement necessitates an acknowledgment of the NDA with Clifford. This Catch-22 highlights just one of the many problems associated with this popular contractual tool that is – more often than not – used by the more powerful party in a dispute to keep their transgressions out of the public eye.
In short, they don’t work, because they often fail to protect the powerful anyway and worse, hinder those seeking justice from moving forward with the authorities.
Nondisclosure agreements are certainly having a moment – and not in a good way. USA Gymnastics included a nondisclosure agreement with Olympic gold medalist McKayla Maroney, as part of her settlement agreement with the organization alleging sexual abuse at the hands of disgraced former USAG doctor Larry Nassar.
After Chrissy Teigen offered on Twitter to pay the fine herself if Maroney violated the agreement so that Maroney could submit a victim impact statement at Nassar’s sentencing hearing earlier this month, USAG issued a statement in which they agreed not to penalize her for doing so (although they allege that it was Maroney, not USAG, who requested the confidentiality clause in the first place).
NDAs have also been of particular importance in the discussions around #MeToo. Speaking to CNN’s Kate Bolduan as news of the Harvey Weinstein scandal broke, I noted that many of Harvey Weinstein’s accusers had signed NDAs with him and/or the Weinstein Company after complaints were raised, making a delayed criminal prosecution of him more difficult for authorities.
In fact, Ronan Farrow’s reporting suggests that Ambra Battilana Gutierrez (the woman who cooperated with the NYPD in an undercover sting operation and caught Harvey Weinstein on tape admitting to her sexual assault) signed an affidavit stating that the incident never took place, as part of her nondisclosure agreement with Weinstein’s team.
These are just two examples of the problems with NDAs when they involve sexual encounters – consensual or otherwise. And, just as we saw a slew of proposed legislation surrounding criminal statutes of limitation for sexual assault in the wake of the Bill Cosby scandal, the latest iteration on the civil side of the #MeToo movement’s fallout is a move toward banning NDAs in civil cases.
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Don’t get me wrong, some women want nondisclosure agreements as part of settlement agreements when it comes to sexual encounters in order to protect their anonymity. But in other circumstances – like Ms. Clifford’s – they are an outdated legal tool wielded by the rich and powerful to buy silence, the absurd results of which are our having to endure the tawdry charade of Kimmel asking Clifford if she has ever “made love to anyone who’s name rhymes with Lonald Lump.”
Clifford’s adroit response, a proverbial wink and nod: “I’ll call you whatever you want me to call you, baby.”