Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and current counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
Stormy Daniels’ attorney, Michael Avenatti, has a talent for stirring the publicity pot relating to his controversial porn star client. He dropped his latest morsels Friday during a drive-by of CNN and MSNBC’s morning shows. In an interview with Chris Cuomo of CNN’s “New Day,” he said six additional women had come forward alleging sexual relationships with President Donald Trump and that his office was in the “early stages of vetting those stories.” Avenatti also claimed two of the women have nondisclosure agreements.
Avenatti also told Cuomo that Daniels has faced physical threats, saying she’ll disclose more details in an upcoming “60 Minutes” interview later this month. He would not answer whether or not it was someone close to the President who threatened her, and later told CNN he couldn’t answer a question about whether he or Daniels filed a police report.
If Avenatti’s statements are true, the interviews suggest that it may be time for Robert Mueller to meet Stormy Daniels. His investigation should focus on possible election law violations relating to the $130,000 hush money payment given to her.
The purchase of the silence of Ms. Daniels or possibly other women may be viewed by the Mueller team as unreported “in-kind” campaign contributions if the payoff was made to advance the Trump presidential candidacy. Such activity might be viewed as either a civil or criminal offense depending upon the facts of the case.
A threat of “physical harm” to prevent a potential witness from providing relevant information to criminal investigators would constitute a clear-cut obstruction of justice and might violate other state and federal criminal statutes, as well.
The President’s personal, self-described “pit bull” lawyer, Michael Cohen, admits to setting up a Delaware corporation, Essential Consultants, LLC to pay the porn star $130,000 in hush money to never speak of sexual encounters he claims the President “vehemently denies.”
Stranger still, the agreement in excruciating detail requires that Ms. Daniels must deliver to the President “every existing copy of all … video images, still images, email messages, … or any other type of creation by DD” (the President). (See Section 3.1 of the Settlement Agreement.)
Later, the agreement defines “confidential information” as “all intangible information pertaining to DD” (the President) … “including but not limited to … any of his alleged sexual partners, alleged sexual actions or alleged sexual conduct or related matters.” (See Settlement Agreement 4.1(a).)
To cut through the legalese, it would seem that the President’s personal lawyer was seeking Stormy Daniels’ silence as well as copies of – and non-disclosure of – images, photographs and video of the President engaging in sexual conduct that he says never happened. This would appear to be a great deal for Ms. Daniels who, if Mr. Cohen is believed, is getting $130,000 to turn over nothing since the President never had an affair with her.
Nonetheless, she has hired lawyers to get her out of the agreement.
She may well believe that she can earn a lot more than $130,000 if she markets her story of an affair with the President, and, of course, the sky is the limit on income if she has Mr. Trump on videotape.
Attorney Cohen adds yet another curious detail stating he has paid the entire $130,000 Stormy silence fee personally, obtaining the money through a home equity line of credit on his home. Neither the Trump campaign nor the “Trump Organization” was involved, he says.
Cohen will presumably assert that he didn’t personally violate federal election campaign laws because he was acting as a personal friend of Donald Trump’s, protecting his friend’s reputation – which mimics the successful defense in the John Edwards’ criminal prosecution. Friends of Edwards had contributed nearly $1 million to hide the candidate’s pregnant mistress while Edwards ran for president.
Edwards obtained a partial acquittal – on the charge that he violated campaign laws – at trial and prosecutors declined to prosecute on the remaining criminal charges upon which the jury had been unable to reach a verdict.
If Stormy Daniels reveals in her “60 Minutes” interview the details of her alleged sexual encounters with the President, she may well face a claim for damages as high as $20 million under the terms of her NDA agreement with EEC,LLC . That agreement has yet to be ruled illegal by any court.
The real question, though, is whether Robert Mueller will view the agreement as a criminal violation of US election laws. If he does, the NDA may have an impact on Mr. Trump similar to the impact that a very famous blue dress had on Bill Clinton.