POLITICS
03/23/2018 05:08 pm ET Updated Mar 26, 2018

The Most Scandalous Part Of The Stormy Daniels Story Isn't The Sex

The attempt to silence the porn actress, as well as ex-Playboy model Karen McDougal, raises some unsexy but vital democratic issues.

It’s tempting to get swept up in the salacious details of President Donald Trump’s (alleged) sexual antics.

The possibility of a sex tape or, God forbid, Trump nudity isn’t actually what matters about his (alleged) extramarital affairs with former adult film actress Stephanie Clifford, who goes by the stage name Stormy Daniels, and former model Karen McDougal. Those affairs (allegedly) took place over a decade ago, when Trump was simply a reality TV star. That he may have cheated on his wife isn’t surprising, given what we know about the president.

What’s important here is the way Trump and his circle of enablers went about trying to cover up these (alleged) affairs, while Trump himself was seeking the top political office in the country.

Trump’s personal lawyer and his allies at the National Enquirer used nondisclosure agreements to silence these women, taking a page from the corporate playbook.

NDAs are already far too common in the business world, used to paper over a host of misdeeds, most crucially sexual harassment and discrimination. Disgraced Hollywood producer Harvey Weinstein is perhaps the most egregious abuser of NDAs, which allowed him to harass and assault women for decades.

To be clear, Clifford and McDougal both say they had consensual relationships with Trump.

“He always told me he loved me,” McDougal told Anderson Cooper in a nearly hourlong interview last week. (Clifford, meanwhile, set ratings records on Sunday with an appearance on CBS’ “60 Minutes.”)

But with Trump, the stakes are even higher. “The entire country pays the cost of not knowing things about the president,” said David Hoffman, a professor at the University of Pennsylvania Law School who specializes in contracts and psychology.

Both payouts happened when Trump was the Republican nominee for president and are already the subject of federal complaints for possibly violating election laws.

Donald Trump is acting like he personally owns this information, as though he can act like a king and take any measures to control the way people talk about him. Heidi Kitrosser, a professor of constitutional law at the University of Minnesota Law School

Trump’s use of these agreements is even more critical now because he is reportedly wielding NDAs in the White House ― an unprecedented act ― in an attempt to silence his staffers, according to The Washington Post.

Most First Amendment lawyers think those agreements would not be enforceable in court. However, the contracts do serve to intimidate and chill speech about public matters ― essentially how the government runs. Stories about the president, from staffers, are critical to understanding history.

“Donald Trump is acting like he personally owns this information, as though he can act like a king and take any measures to control the way people talk about him,” said Heidi Kitrosser, a professor of constitutional law at the University of Minnesota Law School. “You can’t do that when you’re acting with the power of the federal government.”

The public rarely finds out about NDAs. But thanks to lawsuits filed by McDougal and Clifford, their contracts are now publicly available.

The women are both suing to break free of their contracts and talk about Trump; he’s pushing back hard. The White House denies that he ever had an affair with McDougal. Though she’s recently started talking to the media, McDougal said she fears legal repercussions.

“There could be financial ruin,” she said on CNN. “Do I feel threatened? Absolutely.”

Separately, Trump’s personal attorney, Michael Cohen, has filed suit against Clifford seeking $20 million because he claims she violated their agreement. Lawyers say Cohen is mainly trying to intimidate Clifford and stop her from talking. Previously, he admitted to paying her $130,000 out of his own pocket, but denies Trump was involved.  

Both women argue in their suits that there is a public policy interest in their stories ― meaning that because they have information about the president of the United States, Americans have a right to know what happened.

“When we have a public figure ― the most public figure, the president of the U.S. ― the details are something that the public needs to know,” said Orly Lobel, a labor law professor at the University of San Diego School of Law who’s written extensively about the societal dangers of NDAs.

But there’s little precedent for that argument in court, contract lawyers told HuffPost. None could think of any other instance in which a president was fighting to silence private citizens in this way.

“Trump is sui generis in a lot of ways,” Hoffman said, echoing many of the lawyers who spoke with HuffPost, who agreed Trump is in a class all to himself.

If these women win in court, it will likely be because of the way their contracts were negotiated ― particularly Clifford’s, which was written with pseudonyms. Clifford is referred to as Peggy Peterson (PP) and Trump as David Dennison (DD). DD never signed the thing, which is the primary argument Clifford is using to try to invalidate the contract.

“It’s a weird document,” said Greg Germain, a professor at Syracuse University College of Law, noting the pseudonyms and a few other factors that are out of the ordinary about the deal. He also said that Cohen’s explanation for the deal ― he paid Clifford $130,000 with his own money and claims that Trump was unaware ― makes no sense.

“The lawyer saying he’s acting on Trump’s behalf but didn’t tell him,” Germain said. “I don’t know where he thinks that’s going.”

Hoffman said the Clifford agreement is the hot topic among contract lawyers at the moment.

“You just never see this stuff,” he said, referring to NDAs. “It never emerges from the swamp. It was never supposed to be tested in the light of a thousand suns.”

McDougal’s case is perhaps the stronger of the two, lawyers told HuffPost, because according to the suit she was misled into silence.

“It’s a very straightforward application of longstanding contract principles,” Hoffman said. “if you’re lied to in making a contract, then the contract is not valid.”

McDougal’s story may be the more troubling one. She appears to have been manipulated in a manner reminiscent of so many sexual harassment cases. For her silence, she was promised career opportunities.

American Media Inc. paid McDougal $150,000 for the rights to her story (her lawyer took nearly half) and assured her she would be able to write fitness columns for two years. AMI also said she would land on the cover of several of the company’s publications, including Star magazine, Radar Online and Men’s Fitness, where she had appeared in 1998. In pushing her to sign the deal, the men at AMI emphasized McDougal’s age, telling her that since she was an “older model,” the deal would be very important, according to the suit.

McDougal was excited about the opportunity, she told Cooper. “Who wouldn’t want this work?” she said.

She signed the agreement in August 2016, shortly after Trump won the Republican nomination. (Clifford signed her deal about a week before the presidential election.)

“They wanted to squash the story,” McDougal told Cooper ― presumably to protect Trump, she added. “They didn’t want to hurt him.”

AMI is now saying McDougal can discuss her alleged affair, but says it still owns the life rights to her story.

“I almost feel violated in that I didn’t know what was happening behind the scenes. I’m angry,” she said. “I want my life rights back. I want to share my truth. Everyone else is talking about it. I’m standing up for myself.”

Of course, these aren’t the quotes that got picked up from McDougal’s CNN interview. Most outlets focused on her claim that Trump tried to pay her for sex and that he compared her with his elder daughter, Ivanka.

Correction: A previous version of this story claimed that adultery was not a crime. In some states it is.

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