Meltdown! Cohens' zeal to keep Trump off hook for a hush money payment essentially just voided NDA

[kpete]

Michael Cohen’s zeal to keep Trump off the hook for a hush money payment essentially just voided the basis of her NDA.

I don’t know what the hell Cohen’s lawyer is doing here but @MichaelAvenatti is popping champagne corks. Cohen’s lawyer just admitted that Trump not only never signed the hush agreement but he wasn’t even aware of it. Trump has no agreement with Stormy that I can see. None.



VIDEO:
Here is Michael Cohen's lawyer and spokesman saying categorically that Cohen negotiated agreement w/o ever telling his client DJT anything abt it and made him a party to the agreement w/o any intention of telling him abt it or having him sign it.

Link to tweet

Link to tweet

Link to tweet

[wishstar]

1. Sounds like grounds for disbarment of Michael Cohen then

[Takket]

16. Yeah I'm not a lawyer but...

Pretty sure you can't enter into an agreement on your clients behalf without telling him or her.

Bring out the dirt!!! NDA is void!

[DetlefK]

53. The disbarment would actually be for the money.

A lawyer can't spend money on behalf of his client. Cohen paid hush-money to settle a dispute between Stormy and Trump.

[Wellstone ruled]

2. Taking one for the President?

This smells to high hell.

[CatMor]

4. I agree with you...

it sure does smell. I think they're all lying.

[Wellstone ruled]

8. My guess is,Cohen will

disbarred within two years.

[CatMor]

11. He only has himself to blame....

by agreeing to do all the trump dirty work.

[BSdetect]

3. Preposterous.

[herding cats]

5. The contract is void and Cohen is potentially facing disbarment?

That interview went swimmingly!

[boston bean]

6. Cohens attorney seems like he is trumps attorney.

Cohen under the mob bus.

[no_hypocrisy]

7. And if there is no contract, then the $170,000 paid to Stormy Daniels is a gift.

Cohen owes the IRS some money on that gift tax -- unless she returns the money to him.

[tblue37]

15. $130,000. nt

[no_hypocrisy]

56. My bad. Thanks.

[unblock]

33. Presumably she always had to pay taxes on it

If it's not a gift it's income from work. Either way it's taxable income.

[EffieBlack]

35. Settlements of claims are usually not taxable income under IRS rules

I don’t know if that extends to payment under a non-disclosure agreement, but it very well may.

Either way, she seems to pretty astute with her business, so I’m sure she handled it right.

[jberryhill]

37. This wasnt a settlement of a claim

While there is general release language, the object of the agreement is simply to refrain from disclosing confidential information.

[EffieBlack]

45. I know. Thats why I said I dont know if the principle extends to this situation

But, as I also said, I’m sure Daniels handled her business, so I’m not going to expend any more energy pondering it.

[pnwmom]

51. Whatever the object was, DD didn't sign it. Not this copy or any copy,

according to Michael Cohen's lawyer. He not only didn't sign it. He wasn't aware of it.

Which means that all the assurances that DD gave that were supposed to be part of the consideration to Stormy were meaningless. Without DD/DT's agreement, there was no contract between Stormy and DT.

So there goes the argument that there might have been some other copy of the agreement that WAS signed by DD/DT.

[unblock]

43. Well if I damage your property and we settle , then yeah

Because that's not income it's just making money you whole.

But the $130,000 wasn't for damage to assets, it was income.


Put it this way, if it's not taxable, then settlements could be used to evade a whole lot of taxes. I work, you don't pay me, a threaten to sue, we settle, I get paid damages instead of wages, I don't pay taxes....

[pnwmom]

52. Gift taxes are owed by the person giving the gift. n/t

[unblock]

57. good point.

i wonder if stormy's already paid taxes on it as income though.

[pnwmom]

64. She'd have to pay taxes on the income she made as a result of investing the gift.

But not from the amount of the gift itself.

[unblock]

65. i mean, she already got it in 2016 and filed taxes in april 2017, right?

so at that time did she claim it to be a gift (or otherwise just not report it) and not pay taxes on it?

or did she claim it to be income and pay income taxes on it?


if she already paid income taxes on it and a court later determines it to be a gift i guess she could amend her return to get her taxes back.

[pnwmom]

67. She wouldn't have had to claim it as a gift or income. It would have been the job of the person

making the gift to report it.

https://blog.taxact.com/gift-tax-do-i-have-to-pay-gift-tax-when-someone-gives-me-money/

Gift tax is not an issue for most people

The person who makes the gift files the gift tax return, if necessary, and pays any tax.

Does the gift recipient ever have to pay gift tax?
If the donor does not pay the tax, the IRS may collect it from you.

[Tatiana]

9. This is good news, right?

Can a videotape of this be used as evidence?

There are several people that suggested Avenatti wasn't a good attorney, but he seems to be doing OK to me.

[Hassin Bin Sober]

60. I suspect the tape AND the lack of signature make a compelling case.

Remember, it was Trump's big mouth and tweets that helped sink his Muslim bans in court.


I too would be curious about hearing from a lawyer on this. Can Cohen backtrack and claim utterances on CNN aren't governing and/or Schwartz misspok.

Or is this a new strategy to protect trump from the illegal campaign donation piece of the puzzle?

I would say the wannabe mob lawyers have their manboobs in the wringer.

[Goodheart]

10. I don't like Cohen or his lawyer any more than anybody else here, but

their contention is that Trump was a third party beneficiary to the contract between Stormy and the LLC.

It is my understanding that under contract law a third party beneficiary does not, in fact, need to be aware of the agreement.

[triron]

19. Seems Laurence Tribe doesn't agree with you.

[Goodheart]

66. Well, don't get me wrong...

I'm not defending the value of their argument; I haven't seen it but there certainly might be language in the contract that demonstrates that Trump was a party to the contract rather than a third party beneficiary. But I believe what I said is still correct: a contract is not automatically invalidated just because an intended third party beneficiary was unaware of it.

[Major Nikon]

20. He wasnt a third party

He was listed as one of the signed parties and he never signed it.

[Bernardo de La Paz]

44. Yes and contract specifically says it is only enforceable if all parties sign it. . . . nt

[pnwmom]

26. The contract spelled out various assurances DT was making to Stormy

that were part of the consideration (payment) to her.

If DT wasn't aware of the contract, then he obviously couldn't make the assurances that the contract specifically said she was relying on.

[Hassin Bin Sober]

42. Then how does Trump or David Dennison or whateverthefuck his phoney name is...

.... perform his part of the contract.

The contract guaranteed performance by Dennison/Trump -- including agreeing never to contact Stormy or her family.

That's part of the consideration. How does he grant what he doesn't know about?

[lindysalsagal]

55. If so, then 45 can't go after her for damages, Only Cohen can. So, the big Q is, would Cohen?

[Hassler]

12. You get what you pay for. In Dennison's case, nothing.

[dawnie51]

13. EVERYONE who comes in contact....

with Dump leaves covered in crap. No one escapes. Looks like Dowd is in the barrel for offering up pardons, Cohen is just plain stupid and a wanna be gangster, etc.. etc.. But Dump? He just keeps rolling along. You would think people would smarten up.

[pangaia]

14. Bad for Cohen but isn;t that 'gooder' for trumper?

I mean, if trumper really did NOT know about the agreement, then it was just a matter of a sex fling, and not "making a payoff."

[Volaris]

24. Unless there's proof somewhere that he damn well DID know about the payoff..

Because if so this whole thing looks like another attempt at Remedial Obstruction of Justice Class...This time with what essentially amounts to a half-assed mob lawyer and a pornstar mistress.
You do the math on the destruction level for the GOP among Normal People in the midterms heh...

[not fooled]

41. How

did Cohen know to pay off Stormy if dump didn't tell him?

[pangaia]

47. He knew!!

[Takket]

17. The personal risks people take for drumpf

Never cease to amaze me. What is it about him that makes people willing to throw their entire lives away to defend him????

[rainin]

36. He intimidates or lures into a small compromise.

Once comprised, there's no turning back.

[groundloop]

18. Maybe Stormy didn't have a contract with 45*, but doesn't she have a contract with SOMEONE ????

I get that 45* isn't a party to a contract that he never signed and allegedly never knew about (yeah, right). But can't Stormy be held to that contract anyway, because she did in fact sign it and agree to it?

[pnwmom]

27. She signed a contract in which DD -- who was supposed to be DT -- gave various

assurances to her, and the contract said those assurances were part of the consideration (payment), and that she had relied on those assurances in deciding to sign. (Like promising not to ever sue her for various things he had been threatening to sue her for.)

She signed the contract assuming that DT would sign, too -- and that she could make him uphold his part of the bargain.

But since he wasn't even aware of the contract, he wasn't obligated to do anything.

So that contract was supposed to be between Stormy AND the LLC AND DT himself. And DT was supposed to give her part of the consideration (his promises and assurances) and the LLC was supposed to give the rest (the cash.) But all she got was the cash, and that wasn't meeting the terms of the contract.

[Jarqui]

21. How can Trump sue for non performance of a contract that

he did not know about, was not party to and did not pay for?
Trump gave no consideration so he has no contract with Stormy.

His lawyer's fake company is the only party that might have a deal with Stormy but that's a big mess:

The contract says (some examples)
https://www.vox.com/policy-and-politics/2018/3/13/17109656/stormy-daniels-donald-trump-lawsuit-affair-porn-adult-arbitration-michael-cohen-payoff
"2.2 (b) DD (Trump) claims that he has been damaged by PP's (Stormy's) illegal actions against him, ..."

"2.3 DD (Trump) desires to acquire ... Property (evidence of the fling) ... As a condition of DD (Trump) releasing any claims against PP (Stormy) ..."

"4.3 (b) DD (Trump) warrants and represents .... DD (Trump) and his counsel will refrain from pursuing any civil action against PP (Stormy)"

"4.4.4 "As further material inducements for DD (Trump) to enter into this agreement ..."

"5.2 ... all claims or controversies arising between DD (Trump) on the one hand and PP (Stormy) on the other hand shall be resolved by binding confidential arbitration ...."

DD (Trump) is to perform specific tasks in this contract or has a specific role as a party. As his lawyer claims he didn't know the contract existed nor about the $130,000 consideration given, there is no way Trump could be expected to perform his specific tasks nor fulfil his role as a party named in the contract. He didn't sign the contract agreeing to do those things and agreeing to the terms and conditions of the contract. Therefore, he cannot be expected to perform them - including giving Stormy a release from his claims.

His lawyer is trying to say the "and/or" clause at the top of the contract covers for the fake company and DD (Trump) but there is no "and/or" in those quotes above - it is very specific that Trump is the party for those things - not the fake company.

I do not think the contract is salvageable.
Trump sure as heck can't sue her on the basis of this NDA - he's not a party to a deal he did not know existed. Yet he'd be the party with the damages - not the fake company Cohen set up that no one knows exists and is not an ongoing entity but is the only party in the contract aside from Stormy.

It's a ridiculously bad contract when combined with the video testimony above.

After that above video, I can't see how Trump can go to court to challenge Stormy on this contract. A big dose of humble pie and a big payoff to Stormy for defamation is probably what has to happen.

[pnwmom]

28. Thank you, Jarqui, for your clear analysis! n/t

[uponit7771]

38. +1

[unblock]

40. I don't think there are any damages for defamation

How has her career been damaged?

It's the sort of case stormy can win and get awarded $1.

Of course all she really wants legally is the freedom to sell her story without have to pay anything to Donnie or his lawyer.

[Jarqui]

46. They called her a liar in the national media

I don't care what she does for a living. Calling her a liar on the national stage is defamatory and she would be entitled for much more than $1 - particularly when it comes out that they knew the truth when they defamed her - that it was malicious and self serving. She provided them with "property" that would prove what had gone on between the two. They're in deep crap for doing this to her.

[unblock]

49. You're giving arguments for why she wins, not damages

My point is yes she wins but when it comes to damages they can point out that their actions have her vastly *more* valuable. She's been doing a "make America horny again" tour and her story is clearly worth far more than the $130,000 hush money.

For economic damages, she would have to show that she lost out on some financial opportunities because someone doubted her honesty due to Donnie's and his lawyer's smears. I think this will be hard to prove, if not impossible, especially as the smears are not credible.

She could prove emotional damage, but under the circumstances I don't know how much this could be worth. A porn star who commits adultery and signs an nda? Even if it's unenforceable, it shows she was prepare for Donnie to deny any affair.

Which is why I think she wins only $1.

[Jarqui]

50. Damages in a Defamation Case

https://www.nolo.com/legal-encyclopedia/damages-defamation-case.html

... whether the jury thinks that the plaintiff or the defendant lied about anything -- as a general rule, the jury punishes whoever it thinks lied at trial. If the jury thinks that the plaintiff lied, the plaintiff will generally lose. If the jury thinks that the defendant lied, the plaintiff may very likely win big...

When the defendant lied to the national and international media and therefore, the whole world, that also factors in to winning bigger.

Donald Trump's lawyer is claiming that because of his clients notoriety, she's done $20 million in damages to Trump on the national/international stage. Pretty tough for him to turn around and argue because Trump lied about her that it's only worth a $1. If her lawyer continues to belittle her relative value in such a way, the jury will slap them with punitive damages.

Basically, Trump has a choice:
a) be deposed for something that looks like a gigantic, malicious lie on his or his lawyer's part
or
b) buy them off with a hefty settlement to minimize further damages

Remember, for her to get $130,000, her original lawyer had to turn evidence ("Property" ) over to them


It appears from the above photo tweeted by her new lawyer that they kept a copy of it. The very nature and details in the agreement heavily suggest there was such evidence that she possessed but there's no discussion of evidence he has - usually lawyers swap the dirt the clients have on each other but this was only a one way deal - which supports her position.

If Stormy doesn't get seven figures in a settlement, we'll be watching Trump provide a deposition that will reveal his lies. Therefore, I think Stormy is about to became a millionaire. Like Trump, I think his lawyers on this are pretty stupid and haven't figured it out yet: it's really hard to go into the scrutiny of a court and prove a lie.

[unblock]

58. donnie's claim that she damaged him is also pretty suspect.

it's not as if donnie's image went from saint to sinner as a result of stormy's statements.
he already had a self-created image of a womanizer and adulterer and worse.

it's hard to claim defamation with a straight face when you've got comedians using "remember, donald trump wants to bank his daughter" as a repeated punch line. heck, stormy's allegation that he had sex with someone he's not related to arguably is a step up for his image.


in any event, for damages you have to show that there's something it actually cost you. if someone defamed you and it tarnished your reputation, that might win you the case and get you the first $1. but to get a real payout you have to show damages. some job you lost because of the damaged reputation, some media gig that got canceled, etc.

i don't think donnie could really point to anything concrete to say that stormy's responsible for any particular economic loss.
as for stormy's case, i think she's got a stronger argument that he defamed her, and lied to do so.

that can certainly get a judge pissed and be eager for a big payout, but based on what? she's getting more opportunities and can charge more for everything now, not less. i doubt she can find a single economic gig she lost out because of his lies, certainly not one that didn't open up three better alternatives.

all she can claim is psychological damage, though again, this shouldn't be a big number, even given that donnie lied.



also, a lot of what we're hearing is lawyers verbally sparring *outside* the courtroom like boxers and promoters before a fight.
it doesn't mean much. more interesting to see what they actually say in court, or rather, what they can actually back up in court. you always *claim* huge numbers when suing for damages.

[Jarqui]

59. It's not just the economic damages

which I agree are debatable in the short term.

Longer term, her looks are already beginning to fade. She's a pretty chunky lady now. Yet for the longer term, he's made her out to be a liar for all time - from the podium of the White House and from the lips of a man claiming to be his attorney.

When the looks are gone, she's going to be looking to sustain herself in a different market - one that isn't buying her for her body and looks and sex. Trump's White House and lawyer have branded her a liar. She needs to get that record corrected and she is entitled to non-economic damages for her being put through the ordeal of what they have with their lying.

She now hangs the threat of a deposition over Trump - which is something he cannot submit himself to because by all appearances, she is the one telling the truth and the one with evidence on her side. So the damages he's paying are really to avoid his own embarrassment for being caught in a lie by a porn star.

[unblock]

61. i agree that much of the legal action is actually about negotiating the value of the story

how much is he willing to pay to keep what's left of the story secret? they'd call any further payment a settlement of claims for damages but it would obviously be more hush money.

if he pays, it's not because he accepts it as a fair amount for any economic damage, present or future, or anything like that. if he pays it would be payment to avoid a trial and discovery and more bad press.

[Jarqui]

63. I do not see he and his lawyer sitting for a deposition and coming

away owing nothing.

They have said repeatedly to the whole world that this woman is a liar. The balance of probabilities seem to reside heavily with her.

They have requested a trial by jury. It's out of a judges hands.
In a poll after the 60 minutes interview, only about 22% believe Trump-Cohen.
That's before anyone has seen the evidence, the passed lie detector tests, etc

So part of the motivation here has to be to cut their financial losses because they're going to get the crap kicked out of them in court if they don't.

The chances of a jury trail awarding her only $1 if she is telling the truth seem to be about none.

[Bernardo de La Paz]

22. Trump's attorney's lawyer will need a malpractice attorney now.

(... a reply in one of the tweets)

A lawyer for a lawyer for a lawyer for a doufus.

It's lawyers all the way down until you hit the shit.

[mentalslavery]

23. this is some great legal positioning here....this is mind blowing.. check this out

daniels and lawyer knew trump could never claim to know anything....as it was too toxic to acknowledge...therefore, he can not claim to have a contract with her...

stormy has a dna with cohen's llc..and maybe cohen....but the question is can a third party form a contract with someone to not say anything about an incident that another party claims never occurred....? Basically don't ever talk about something my client completely denies and has no recollection of....Of course, I don't either .....because if I did ....that information would have to be confirmed by my client...who naturally knows nothing...

we are in strangely hilarious legal territory...

and this little piece...any statement stormy makes could not possibly be proven as a violation of the dna..... because how could cohen's llc, or himself, even claim she has violated a dna as he could not possibly know which statements are even relevant to the dna because his "shadow" client denies all claims.

mind blow.....

He would only be able to know which statements are relevant to the dna if he states that his client has told him something about their encounters....which he hasn't because they never occurred...

[Volaris]

25. Lol reminds me of Oceans 11...

I still owe you for that thing.
What thing?
That Thing. With that guy...In that place.
I've never been to Belieze.

[mentalslavery]

31. Belieze!...who said anything about Belieze...

im talkin about thing with the guy...who does not exist....ya know

[Volaris]

54. Nope lol

[pnwmom]

30. This is a mind-blowing logic problem. And the answer is

I feel safe in guessing neither Cohen or Trump ever took a single class in it.

[mentalslavery]

32. pnwmom...you and I know damn well you were never

supposed to talk about that class....

[democratisphere]

29. Cohen fell on his sword for drumpf, and didn't even know it!

[mentalslavery]

34. More like cohen tried to fall on his own sword and trump tripped

and is skewered them both....


lovin every minute of it

[Grammy23]

39. Paging Vinny Gambini....

You’re Needed in the courthouse, courtroom 12.

[Cha]

48. Crap they're dumb.. 1st year law

students know better.

[BoneyardDem]

62. Trump is extremely cautious to employ certain strategies

that gives him plausable deniability. It's likely the one reason he feels confident in stating "no collusion". Everyone else can be blamed but not him. I dislike using the "Hitler" comparison, but I will for this one post. Hitler did the same thin with the mass killings of Jews. He made sure that there was enough separation that he could claim ignorance of the actions of his subordinates. Trump is doing the same thing.

[Vinnie From Indy]

68. What a colossal DUMBASS!

Cohen is now at risk of being disbarred.

These jackasses truly are The Gang That Couldn't Shoot Straight.