At the surface, it seems that the Stormy Daniels saga is a salacious and pointless story distracting the public from the truly important issues in the Trump era. After all, she’s a porn star whose story involves an extramarital affair with a powerful much older man. Such incidents usually pertain to nothing of consequence. Even if they pertain to $130,000 hush money payments and non-disclosure agreements.
But if that older man is Donald Trump who’s now the president of the United States, then Daniels’s story isn’t about the tawdry details of infidelity. But one about Trump’s corruptibility as a president whose personal life and finances are shrouded in unprecedented secrecy. Back in 2016, Trump’s longtime personal attorney Michael Cohen paid Daniels $130,000 in exchange for her signing a nondisclosure agreement to keep her from saying anything about her alleged affair with Trump during the election’s final days. Recently, Daniels has filed suit to invalidate the non-disclosure agreement she signed, freeing her to speak about her relationship with Trump. Cohen has filed a private arbitration case against her and obtained a restraining order stating that she’d face penalties if she publicly discusses her affair. Her attorney has claimed she’d been threatened with physical harm if she didn’t keep quiet. Then there’s the fact Cohen has filed a suit against her for $20 million for breaching their agreement. Daniels’s attorney Michael Avenetti slammed Trump’s team for a “bullying tactic” in pursuing such an enormous sum from a private citizen over “bogus” damages in a maneuver that’s “likely unprecedented in our history.” He said their attempts to move a case from a state court in Los Angeles to a federal court is because it would increase the chances the matter will be decided in private arbitration, “thus hiding the truth from the public.” Oh, and the Trump team has tried to keep her interview with Anderson Cooper from airing on 60 Minutes on March 25.
Nonetheless, from the public’s standpoint, the key issue isn’t Daniels’s story. It’s the circumstances surrounding the payoff and how many similar deals out there. Now the payoff raises 2 big ethical and legal problems. First, it’s an attack on American’s threadbare system of campaign finance regulations thanks to Citizens United. But one of the few remaining laws on the books bans corporations from giving gifts to a candidate. Since Cohen used his Trump Organization email to arrange the deal and relayed the payment through a private Delaware-based shell company to her representative. And he did with no thought of repayment, discussion, or coordination with anyone else on the Trump team. According to Washington Post reporter, Philip Bump, “those two things together — that a Trump Organization email address was used to facilitate the payment and that the payment was linked to the campaign — would constitute a legal violation.” Of course, you could argue that a payoff made weeks before Election Day to prevent disseminating damaging information about a presidential candidate had nothing to do with the campaign. Either way, the money’s true origins and the extent of other Trump figures’ involvement in the payoff is worth taking seriously. Still, if we ignore this drama just because it involves a porn star, we might blow another enormous hole in a web of rules supposed to separate our democracy from a plutocracy. If we stop enforcing the rules about coordination, corporate contributions, and disclosure simply because Daniels’s case is tawdry, we’ll regret it.
Second, secrets worth paying over a hundred grand to keep could be powerful tools in foreign governments’ or domestic special interests’ hands. We know that Stormy Daniels isn’t the only woman Donald Trump has paid off. Former Playboy bunny Karen McDougal also had an affair with Trump around the same time as Daniels and received $150,000 from the National Enquirer for exclusive rights to her story in August 2016, which they never published. She’s also suing to invalidate her non-disclosure agreement as well. And I’m Trump has paid off other women, too. In addition, Trump has other secrets, some of which may or may not have been successfully kept from interested parties. And it’s likely someone might have leverage over him.
Donald Trump is a notorious philanderer and is subject to 18 sexual assault and other misconduct allegations that congressional Republicans don’t want to investigate. The Trump Organization has deployed aggressive nondisclosure agreements years before he became a candidate. Not to mention, he has a long history of corrupt business practices and still hasn’t released his tax returns. Taking all that into account, it’s not hard to conclude that Daniels and McDougal aren’t the only people whose silence Trump has bought. Michael Wolff’s Fire and Fury quotes Steve Bannon saying that longtime attorney Marc Kasowitz, “has gotten him out of all kinds of jams. Kasowitz on the campaign — what did we have, a hundred women? Kasowitz took care of all of them.” Bannon might’ve exaggerated. But his statement supports McDougal’s claims that Trump and his friends had a system to keep his affairs quiet. People at the National Enquirer told the New Yorker that America Media Inc.’s Chairman and CEO and Trump friend, David Pecker often bought stories to kill them. Sometimes he did it to protect the story’s subject and sometimes to hold the story as a sort of leverage over celebrities. As McDougal told Ronan Farrow, “Someone in a high position that controls our country, if they can influence him, it’s a big deal.” >
Given what we know about Donald Trump’s sex life, you may wonder how his reputation could possibly be damaged by extramarital affair revelations. Trump has no problem with naked photos and videos. He appeared on the cover of Playboy which he proudly displayed on his Trump Tower office wall. In fact, he signed copies of the magazine on the campaign trail. He had cameos in 3 Playboy videos in 2001. His wife Melania’s official White House biography even included the time she posed nude for British GQ, not her only such photo shoot. In addition, his 3 marriages and 2 divorces were New York tabloid fodder. Hell, the New York Post once ran a cover with his mistress claiming Trump was the “best sex I ever had.” He’s boasted to Howard Stern about going in contestants’ dressing rooms during his pageants. He bragged about his penis size during a presidential debate. Oh, and another porn star claimed he once offered her $10,000 for sex. And let’s not forget that he bragged about sexually assaulting women on a bus in front of Billy Bush. So Stormy Daniels telling her story of her affair with Trump won’t hurt his reputation as the total scumbag he already is.
But the fact he and his allies are willing to cut large checks to buy Daniels’s and McDougal’s silence indicates that they think these secrets are valuable. The problem with a powerful public official having valuable secrets is they can be exploited for more than just financial gain. Nobody with this kind of exposure to blackmail and manipulation by special interests or foreign intelligence agencies could get a high-end security clearance. And at least in a traditional sense, such exposure would’ve made someone ineligible for a high-level White House position (like Jared Kushner). As president, Donald Trump is exempt from the normal security procedure rules on grounds that the voters should be able to decide. Yet, that demonstrates that voters deserve to know the truth about the scope of Trump’s secrets and the lengths he’s willing to go to keep them. Based on his history, he’s at least willing to sue anyone willing to release an unflattering documentary about him, a reporter talking about his wealth, and Daniels.
A recent report from the Washington Post report that in the early days of his presidency, Donald Trump asked White House staff members to sign nondisclosure agreements vowing not to reveal confidential information, which they complied. A copy of a draft obtained by Ruth Marcus said those who violate the agreement would be subject to $10 million in penalties for each unauthorized revelation of confidential information (though she suggests that such an enormous amount didn’t make it into the final copy). It bars staff from discussing, “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including, “communications . . . with members of the press” and “with employees of federal, state, and local governments.” It also forbids, “works of fiction” mentioning government operations or are based on confidential info. The agreement has no date, meaning it essentially keeps former staffers from speaking out forever. And if these were anything like the non-disclosure agreements Trump used on his campaign staff, I guess his White House staff would be prohibited from releasing anything disparaging about him, his family, or his businesses. Not to mention, ban them from citing insider material in books, memoirs, speeches, or movies. In 2016, Trump told the Washington Post, “When people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that.” A source told Marcus that the decision to implement the agreements came about in February or March 2017 when there was, “lots of leaking, things that just weren’t true, and a lot of things that were true and should have remained confidential.” Trump hoped to quell leaks by making sure his staff knew they could be “on the hook for some serious damages.”
Using such agreements in the White House is unprecedented and likely unconstitutional. As Marcus writes, “the notion of imposing a side agreement, supposedly enforceable even after the president leaves office, is not only oppressive but constitutionally repugnant.” Attorney Debra Katz told the Washington Post, “The idea of having some kind of economic penalty is an outrageous effort to limit and chill speech. Once again, this president believes employees owe him a personal duty of loyalty, when their duty of loyalty is to the institution.” Unlike employees in the private sector like those in the Trump Organization, White House aides have First Amendment rights under their employer, the federal government. Then there’s the conflict with federal laws like the Freedom of Information Act, which requires the preservation and public release of government information, including email communications, schedules, and other information about high-level employees.
The Presidential Records Act makes private White House communications publicly available within 12 years after a president leaves office. While federal employees can be prohibited from sharing information, that generally applies to what’s classified or otherwise sensitive. If a White House staff leaks to the press, the cure’s firing not suing. Still, if you don’t think Trump won’t try to use the NDA to silence staffers, Cohen has sued Stormy Daniels for $20 million over violating hers 20 times. Even if they don’t think they’re legally enforceable. They are meant to intimidate government employees to remain quiet or else have a good lawyer on hand if they choose to speak out against the Trump administration. After all, Trump has fired Rex Tillerson as his Secretary of State who called him a “fucking moron,” behind his back.
Nonetheless, if Donald Trump’s history is anything to go by, he has a broad discretion on what constitutes a confidentiality breach. Trump Organization employees are restricted from publicly disclosing information, “of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential,” according to the document. They’re also required to return or destroy copies of any confidential information at Trump’s request. The company nondisclosure agreement is binding during employment “and at all times thereafter.” Trump’s confidentiality agreements stipulate that disputes be handled by the American Arbitration Association with the result it keeps legal matters out of court and information out of public view.
However, public court documents show that Donald Trump is aggressive in targeting anyone divulging information about him or his businesses. In 1992, he famously sued ex-wife Ivana for $25 million on claims she violated their divorce decree’s nondisclosure portion. The lawsuit stemmed in part from a Harry Hurt romance novel called The Lost Tycoon, which her ex-husband claimed was based on their marriage. In 1996, Trump sued New York businesswoman, Barbara Corcoran for her New York magazine comments he claimed violated a confidentiality agreement. In 1999, he withheld an alimony payment from ex-wife Marla Maples for violating a confidential agreement between them when she told a British newspaper, “If he is really serious about being president and runs in the general election next year, I will not be silent. I will feel it is my duty as an American citizen to tell the people what he is really like.” In 2002, Harper Collins shelved a volume of Maples’ tell-all, most likely because Trump blocked its release. In 2013, his Miss Universe pageant sought and won a $5 million judgement against a former contestant, accusing her of disparaging an event by claiming it was rigged. The judgement hung on the contestant contract’s fine print barring participants from doing or saying anything bringing, “public disrepute, ridicule, contempt or scandal or might otherwise reflect unfavorably” on Trump or a list of businesses associated with the pageant. In 2016, he campaign aide Sam Nunberg’s for $10 million over his non-disclosure agreement. And this month, Trump’s lawyer threatened Steve Bannon with a lawsuit for comments he made to Michael Wolff.
While the inclination to try to stay serious and talk about guns, trade, Medicaid or drug overdoses rather than Donald Trump’s affairs with porn actresses and Playboy models is understandable. But the American people have a right to know whether Trump, his associates, and the businesses he controls violated campaign finance law. We also have the right to know whether he habitually cuts large checks to buy ex-lovers’ silence and how broadly susceptible to blackmail or other forms of manipulation he may be. A responsible Congress would investigate these matters. The fact the current Republican majority is so invested in turning a blind eye to all sorts of Trump misconduct that it doesn’t even occur to anyone that these investigations will happen. At least until midterms. But Robert Mueller is already investigating Trump’s team, but on different grounds. And there is some overlap between the Daniels’ case and the Russia investigation in terms of personnel and subject matter. Cohen is an important figure is both stories. Not to mention, the alleged “pee tape.” It would be at least reasonable for Deputy Attorney General Rod Rosenstein to formally expand Mueller’s mandate to include the campaign finance questions in the Daniels reports. Either way, Washington should stop tittering in embarrassment and recognize that there’s a serious scandal here.
Of course, I have no interest in hearing Stormy Daniels’s story about her relationship with Donald Trump. I don’t want to know more about Trump’s sex life more than I already had. Nonetheless, if Daniels wants to tell her Trump story, I believe she has every right to. Especially since Trump is now president. Yet, we shouldn’t forget about all the other Trump stories such as his rampant wage theft, his Trump University scam, his egregious business practices, his business dealings with shady figures, his fake charity, his bankruptcies and business failures, his ripping off consumers and cheating investors, his pathological lying, and other schemes. His history of corruption is mindboggling and really should be heard. The fact Trump uses nondisclosure agreements on people associated with him from employees to ex-lovers and wives should really alarm us. Especially if he’s known being aggressive targeting anyone willing to say what he wants kept under wraps. Trump is a man with plenty to hide.
While we’re at it, if a noxious figure like Donald Trump needs constant recourse to non-disclosure agreements, those in their current, virtually unlimited form should be banned. It is a shame that these NDAs have become increasingly common in employee-employer relationships, business interactions, and even in purely private matters as we see with the Stormy Daniels case. And they have become the legal workaround for rich people and corporations to prevent truthful criticism about themselves and exposure of their potential misdeeds. They represent a misuse of our justice system to legally coerce an unequal relationship between those who have money and those who don’t. Thus, they’re court-sanctioned extorting of a person’s silence that serves no public benefit. There is no question that NDAs enabled Harvey Weinstein’s serial predation and other employer abuses across the country. NDAs arising from lawsuit settlements can present a real public danger by preventing victims from ever speaking out about the wrong done to them. They allow a rich enough wrongdoer to use the justice system to buy the wronged’s silence. If the accused party be a sexual predator like Weinstein, financial fraudster like Bernie Madoff, or an employer endangering their employees’ health and safety like Don Blankenship, NDAs set up perverse incentives to continue such action for as long as the wrongdoer can buy silence from the courts. It’s ridiculous that mere “disparagement” of a boss or company should be legally actionable through an NDA. Why should somebody’s opinion about someone or something matter in a court?
State legislatures and courts need to drastically limit contractual NDAs to protection of legitimate business interests like trade secrets, unique business processes, or maintenance of client confidentiality in sensitive areas like medicine and law. Likewise, court settlement NDAs should be limited in cases whose exposure to the details serves no public benefit, or when the injured party may wish to guard their own privacy like in certain sexual harassment suits. Should an employee or outside party actually make injuriously false statements about someone, the injured party could still sue for libel. But they must prove that a statement is false and defamatory as well as stated with a reckless or knowing disregard for the truth. So US libel laws can’t be used to shut down free speech. But NDAs can and have as Trump’s history clearly demonstrates. Stormy Daniels shouldn’t have to sue to tell her story. Neither should anyone else connected to Trump.