At first blush, the legal strategy of Stormy Daniels’ attorney, Michael Avenatti, appears to make no sense.
Daniels is arguing that the October 26, 2016, agreement she signed accepting money in exchange for her silence about an alleged affair with Donald Trump is null and void because it was not signed by Trump himself.
On its surface, this is a poor strategy. While cloaked in pseudonyms, the agreement itself says that it is between three parties: “David Dennison,” i.e. Trump; “Peggy Peterson,” i.e. Stormy Daniels / Stephanie Clifford; and “Essential Consultants” (EC), a consulting company formed by Trump’s lawyer, Michael Cohen, apparently expressly for the purpose of signing this agreement and paying Daniels $130,000 in hush money.
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Weirdly, the agreement actually says it is between “EC, LLC and/or David Dennison, on the one part” and Daniels on the other. That “and/or” is quite unusual in the recitation of parties to a contract. Either the parties are signatories, or they’re not.
The only plausible interpretation of this unusual “and/or” suggests that either EC or Trump is sufficient for the agreement to be binding. The non-signature of Trump/Dennison shouldn’t matter.
Moreover, Daniels took the money and, at first, complied with the agreement. As first-year law students learn in school, there’s an offer, there’s acceptance, and there’s consideration – there’s a contract. In fact, courts generally go out of their way to enforce imperfect contracts, even absent these extenuating circumstances. Avenatti’s argument is a reach.
It also seems weirdly unnecessary because we already know about the contract and the alleged affair.
I’ve reviewed dozens, if not hundreds, of non-disclosure agreements in my life. Pretty much all of them become voided once the confidential information becomes widely known. That’s true even of agreements like this one, which is unusually constructed, outrageously slanted toward one party (guess which one) and intended to keep Daniels silent throughout all eternity and the entire universe no matter what.
In this case, when the Wall Street Journal revealed the details of the contract on January 12, 2018, that information stopped being confidential.
So why not just say that? Why not cite the WSJ report, say the information is no longer confidential, and that’s that? Why seek a declaratory judgment voiding the agreement based on a flimsy theory that Avenatti must know is risky at best?
The answer may be in the agreement itself, because it has some unusual provisions in it.
First, it’s chiefly concerned with “certain still images and/or text messages.” Yes, later in the agreement, the “confidential information” at issue is expansively defined, to include absolutely anything, tangible or intangible, that Daniels might know about Trump, including, of course, whether she spanked him with a magazine or not.
But far more ink is spilled discussing what Daniels is supposed to do with those texts and images: give copies to Cohen and destroy the originals.
Now the strategy starts to make sense. This dispute isn’t about the affair: it’s about those pictures or texts. As viewers of Daniels’ 60 Minutes interview surely noticed, the only question Daniels refused to answer was about whether she’s got more evidence of the affair. Avenatti suggested the answer is yes: he tweeted a photo of a DVD inside a safe.
If Daniels has retained copies of pictures or texts, then she is in clear violation of the central parts of the confidentiality agreement. Not only does the agreement explicitly forbid her from keeping copies of images or texts, it actually defines them as Trump’s – oh, sorry, David Dennison’s – personal, copyrighted property.
Incidentally, that, too, is quite unusual. Normally, that kind of provision appears in a consultancy or employment agreement. Here, however, it’s been grafted into a confidentiality agreement. If that DVD has pictures of Trump, it is literally Trump’s copyrighted property.
Unless, of course, the agreement is null and void.
Now the pieces come together. Avenatti wants to void the agreement because that way, Daniels can keep that DVD, or, if you want to be cynical about it, auction it off to the highest bidder.
That DVD could be the stained blue dress of this whole scandal: proof positive that the affair took place, that the coverup took place, and that Cohen and Trump are liars.
Then again, it might just be a blank DVD in a safe.
Now you can see why Avenatti is pursuing this weird and unlikely strategy to say that the agreement was never valid in the first place: that’s the only way for that DVD to matter.
Daniels’s statements so far are most likely not violations of the confidentiality agreement, because the information in them is no longer confidential. But whatever’s on that DVD – and all the devastating power incriminating texts or images would have – still is confidential.
For now.
