Can Trump Stop The Airing Of The 60 Minutes Interview With Stormy Daniels?
The President Seeks One Sided Public Commentary On The Issue.
Stormy Daniels’ attempts to tell her side of the story of her affair with Donald Trump have been the target of legal attacks from the President of the United States. First Trump used an arbitration clause in his alleged non-disclosure agreement with her to obtain an ex parte restraining order against her.
It should be noted that Trump, and his attorney Michael Cohen, have felt free to engage in their own one sided discussion of the issue, repeatedly denying any affair happened. They seem to believe the non-disclosure agreement just prevents Daniels from telling her side of the story while they are free to tell their own. Put simply, the President and Cohen believe the non-disclosure agreement allows them to deny everything, but prohibits Daniels from denying their denials.
Daniels Sues To Void The Hush Agreement.
The porn star responded to arbitrator’s star chamber proceeding injunction by suing the President of the United States to have his “Hush Agreement” with her declared void because Trump didn’t sign it. Under this theory the payola to a porn star in exchange for silence agreement never existed rendering the arbitration enforcing it a nullity and releasing Daniels to speak as freely as Trump and Cohen have already done.
The lawsuit’s Complaint not only provided some details of the sexual relationship, which Daniels says did happen, but also attaches the rather seamy non-disclosure agreement itself. It’s a non-disclosure agreement where the President of the United States, just days from his election, is using an alias to pay off a porn star. The non-disclosure agreement also reveals that Daniels had evidence that the agreement obligated her to either hand over to Trump or destroy. In acknowledging the existence of evidence of an affair the non-disclosure agreement seems to acknowledge the affair itself.
Trump May Seek An Injunction To Stop A 60 Minutes Interview.
Now there are reports that Daniels sat for an interview with Anderson Cooper for CBS’s 60 Minutes. Supposedly, Trump’s legal teams is preparing action to seek an injunction to prevent 60 Minutes from airing the interview.
I have to admit, this retired lawyer had to strain to find a legal theory Team Trump could use here. After all, 60 Minutes is not privy to the Hush Agreement. On what basis could Team Trump attempt to enforce it’s already shaky agreement with Stormy Daniels against 60 Minutes?
Why Such An Injunction Would Fail.
An injunction ordering 60 Minutes to not publish what Trump claims would be defamatory statements suffers from an obvious problem. To be defamation it has to be untrue and Trump has the burden of proving it is untrue. That is a tough burden considering the non-disclosure agreement, not only does not deny an affair, but seems to operate on the premise it did happen.
I finally came up with the legal theory of “intentional interference in contractual relations.” In essence, Trump’s lawyers would argue that 60 Minutes conspired to induce Daniels to break her contract with Trump and that 60 Minutes should be enjoined from doing so. I do not think this will work, and it’s failure will just make Trump look worse, but it at least provides some sort of lamely plausible legal argument.
For starters, the theory assumes the existence of a contract for 60 Minutes to interfere with. Daniels has sued claiming there is no such contract and any injunction would have to resolve that question in Trump’s favor first.
However, the biggest problem is that such an injunction would be a “prior restraint” against speech that is incredibly disfavored under the law. How disfavored? One need look no further than the seminal “Pentagon Papers” case of New York Times v. United States. In that 1971 case the President sought prior restraint for the alleged compelling need to protect the national security of the United States by blocking release of actual classified material. The Supreme Court rejected the President position as Justice Black wrote that the imperative “to preserve inviolate the constitutional rights of free speech [and] free press” as “the very foundation of constitutional government” is wherein “lies the security of the Republic.”
Now let that sink in. If a previous President could not gain prior restraint to stop the publication of actual classified material what are the chances of this President getting prior restraint to stop the publication of a porn star telling her side of an alleged affair with the President that he and his representatives are already commenting on?
Does The Non-Disclosure Agreement Violate Public Policy?
In my view Daniels has another strong argument to nullify the Hush Money agreement. I believe the contract should be void as violating public policy or the public interest. Contracts which violate the public interest have long been held as void and unenforceable. The most extreme example might be a contract for murder. However, lesser violations of the public interest can still serve to void a contract. A good example might be Lachman v. Sperry-Sun Well Serving Co., 457 F.2d 850 (10th Cir. 1972), which in the context of a non-disclosure agreement, accepted that “public policy will never penalize one for exposing wrongdoing.”
In this case the Hush Money contract, signed just days before a national election of the President, denied the American people knowledge of facts that might have influenced their decision. The payola to a porn star powerfully illustrated how susceptible this candidate may be to blackmail. Blackmail concerns related to sexual misconduct were an essential concern of the Steele Dossier’s suggestion the Russians might have such information too. Daniels’ story, and her alleged actual evidence for the affair, may have also corroborated the stories of a score of women who have their own allegations of sexual misconduct by President Trump. The non-disclosure agreement provided for the suppression and destruction of evidence relevant to their cases.
For all these reasons I believe any effort to gain an injunction against 60 Minutes airing its interview with Stormy Daniels will fail. It will succeed only in making the President look more guilty, and desperate to conceal from the American people the facts of this sordid matter. A behavior consistent with the notion that he is doing the same in regards to Mueller’s Russia investigation.
However, if Trump does succeed in blocking 60 Minutes from airing its interview with Stormy Daniels he will have imposed tougher sanctions on a porn star for merely talking than he has on Russia for interfering with and attempting to disrupt our Democracy.