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The Legality and Liability of the Stormy Daniels Liaison

by | Mar 28, 2018 | Law

Why exactly is Stormy Daniels suing Trump?

You can’t sue someone for having consensual sex with you twelve years ago.  That might be surprising given so much of the coverage from the legacy media, but it is true.  Suits are for addressing grievances, addressing legal trespasses to your person, property, or rights.  Since Daniels makes crystal clear, the sex was consensual*, what exactly is she on about?

This is a question I’ve asked myself quite a few times as I watched the headlines pass by with talk of Daniels’ suing and sex with Trump.  As a vehicle to speak of Donald Trump in unsympathetic terms, this story is quite good from the journalists’ perspective.  That its reportage holds the possibility of actual embarrassment and humiliation for him in front of his family makes it simply irresistible for so many.  Fair enough, but not enough for the courts.  Surely some real case or controversy must be present.

The Court Filing

On March 6, 2018, Daniels’s attorney Michael J. Avenatti filed a complaint for declaratory judgment in the Superior Court of California, in Los Angeles.  Declaratory judgments are like asking for an advance ruling on a certain point.  Let’s say for instance company A has a contract with company B for the sale and delivery of 100 widgets.  Then let us suppose the contract was poorly written leading to ambiguity over which party would be responsible for expensive shipping costs.   As the delivery time approaches, either company might file for this sort of judgment, so they may have a definitive and legally binding resolution of that point ahead of time, learning if a contemplated course of action would be okay, or a breach of contract.

Stormy’s petition asks the court to declare a document she signed on October 28, 2016, titled “Confidential Settlement Agreement,” null and void, making it not, in fact, a legal contract.

The “Agreement”

That settlement agreement is one in which she agreed to not say anything about her relationship with Trump and he agreed to pay her $130,000.00.  The agreement also included a provision requiring Daniels to turn over any photos, texts, videos, etc. relating to Trump, and to “permanently delete any electronic copies.”  Daniels is also bound to keep Trump’s confidences, not disclose private information she learned while with him, and to keep the very existence of the agreement secret.  The agreement itself includes massive financial penalties for Daniels if she breaks the agreement, including requiring Daniels pay Trump one million dollars for each time she breaches it.

If it were declared null and void, Daniels would be free to exploit her experiences with Trump for financial gain in myriad ways, likely for exponentially more money than the $130,000 she received under the agreement.  “I’m sorry I made that deal because I can make new deals now for lots more money,” is to the sad reality of many, not a defense to breach of contract claim.  To get out of this agreement, Daniels needs some other reason.

Here is the reason Daniels and her attorney say the court should rule this agreement void – Donald Trump never signed it.

The sum total of the seven-page complaint is that even though Daniels signed the agreement to keep quiet and took the $130,000 (delivered as promised), that because she doesn’t have a copy of the contract with Trump’s signature, then there is no contract.

In the simplest terms, forming a contract requires an offer, acceptance of the offer, consideration in exchange ($), and a meeting of the minds (agreement to terms).

Daniels keeps quiet, and Trump pays her – easy peasy.  Daniels was not acting alone here – far from it. She was represented by Beverly Hills lawyer Keith Davidson, a man known for blackmailing seeking payment from famous people in exchange for his clients not publicly revealing embarrassing information about them.  She was represented by an attorney; her signature was notarized, she took the money.  While any particular court’s or judge’s ruling on this matter would be hard to predict (especially in California), it seems hard for this lawyer to understand how they could rule there was no contract in place here.

Is A Signature Required?

Most if not all states have adopted a set of legal requirements for contracts called a “Statue of Frauds.”  This is designed to prevent fraud and requires certain contracts to be in writing, and typically singed “by the party being charged.”  That means, if Daniels was never paid the $130,000, she would need to produce a contract signed by Trump to see the courts enforce the contract and make him pay.  The signature as you might imagine is used to say – this person agreed to this promise, and here is the proof, now make them perform.  Since Mr. Trump did perform his duties under the contract and she took the money, again it’s hard to understand how she can argue this means there was never a contract.

Finally, here’s another wrinkle in Daniels’s argument, and it’s section 8.9 of the agreement**:

This Agreement may be signed with one or more separate counterparts, each of which, when so signed shall be deemed to be an original and, together shall constitute one and the same instrument.  Any signed copies or signed counterparts of this Agreement, the Declaration, and any other documentation may be signed by scanned/printed pdf copies of signatures and/or facsimile signatures, which shall be deemed to have the same force and effect as if they were original signatures.

 This means there can be multiple original copies, and that any copy Donald Trump or his attorney possesses can be signed at any time, and that copy will be considered an original signed or executed copy.   Once again, it’s hard to understand how this could be ruled a non-contract, as Trump could presumably sign it next week and it would still be, under the very terms of the agreement, an original signed agreement.

For more on the motivations revealed in the process and my speculation about why this action was commenced, see part two of this story where I will analyze the 60 Minutes piece on this matter.

*There have been plenty of news outlets who have reported that Daniels says she did not want to have sex with Trump. That’s just clickbait.  When Daniels says she didn’t want to have sex with him, she means it the same way I do when I say, after the fact, that I really didn’t want those extra cookies I ate. It’s a statement about regret, not consent.  This was the exchange on 60 Minutes:

Anderson Cooper: Did you want to have sex with him?

Stormy Daniels: No. But I didn’t– I didn’t say no. I’m not a victim; I’m not–

Anderson Cooper: It was entirely consensual.

Stormy Daniels: Oh, yes, yes.

**In the quoted section, I changed the word “executed,” a legal term of art meaning signed to “signed.”

For more on this, watch Scott’s interview with Mark Angelides on LNTV.

Read More From Scott D. Cosenza, Esq.

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