Current events have favored us with another rash of ethics questions. These are more difficult analytically than they are from the standpoint of plain old common sense, but they bear examining if only to explode, hopefully once and for all, the persistent and pernicious myth that legal ethics is a dry and abstract endeavor. I shall not sleep (at least not well) until you share my appreciation for this glorious subject. (H/T Above the Law (here and here) which beat me to the punch on some of these questions.)
The setup: Porn star Stormy Daniels, née Stephanie Clifford, is rumored to have had an affair with Donald Trump in 2006, around the time his third (and for the time being current) wife, Melania, gave birth to their son, Barron. The affair was first aired publicly in 2011 on an internet celebrity website named (appropriately enough) “The Dirty.” The Dirty took down its post under threat of legal action by a lawyer claiming to represent Ms. Daniels. The lawyer’s demand letter reportedly objected to the website’s purportedly commercial use of Daniels’ name and likeness, but did not contend that the story was false.
The story next resurfaced in The Smoking Gun shortly before the 2016 Presidential election. At that point, a longtime lawyer for Donald Trump and the Trump Organization, Michael Cohen, used a Delaware LLC he had just formed to pay Ms. Daniels $130,000. The Wall Street Journal reported in January of this year that the payment was made and accepted as part of a written nondisclosure agreement forbidding Ms. Daniels from discussing the issue further. (The Journal also reported that both Mr. Trump and Mr. Cohen denied that Trump had had sexual relations with Ms. Daniels, and that Cohen reportedly sent the Journal “a two-paragraph statement by email addressed ‘TO WHOM IT MAY CONCERN’ and signed by ‘Stormy Daniels’ denying that she had a ‘sexual and/or romantic affair’ with Mr. Trump,” and further denying “[r]umors that I have received hush money from Donald Trump.” With characteristic deadpan, the Journal further reported that after it had published its first story on the issue a few days before, “several media organizations said Ms. Clifford or her manager discussed the alleged sexual encounter with them in the weeks before the 2016 election.”)
Then, responding to a complaint filed by Common Cause, the Federal Election Commission began investigating whether Ms. Daniels was illegally paid with Trump Campaign money. And the mainstream press began wondering if the President had paid hush money on the eve of a hotly contested election to hide a tryst with a porn star undertaken while his wife was shortly post-partum. Ugly.
This week, Mr. Cohen has favored us with reassurances that nothing was amiss, because he had given Ms. Daniels $130,000 of his own money in the “transaction” (to use his word) that bought her silence. Cohen was quoted in the New York Times insisting that “[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.” (The lawyerly reader will observe that this artful phrasing does not specifically deny that Mr. Trump personally or a Trump supporter provided the money, nor is it inconsistent with anyone having promised to make the payment up to Cohen in some way in the future, nor does it deny that Trump advised, directed, or requested the transaction.) Cohen reportedly refused to say why he had made the payment, whether or not Trump knew he had done so at the time, or whether Cohen had also made similar payments to others.
And now to top it all off, Ms. Daniels’ manager announced on February 14 that Cohen’s public statements appearing in the Times, as well as reports Cohen is “shopping a book” that touches on the story, have terminated the nondisclosure agreement, so “[e]verything is off now, and Stormy is going to tell her story.”
But let’s remember, my friends, that this is a legal ethics story, so let’s get to the juicy parts. That will require us to consider some criminal and election law as well. A good deal is not yet known factually, and we can only hope that the truth will out, and soon. In the meantime let’s hypothesize based on what we do know. We'll do that after the jump.
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