Is Blackmail Being Redefined for Stormy Daniels?

Some of the worst travesties of justice occur when a lawbreaker manages to convince the public that he or she is actually the victim. This, in fact, appears to be the real story behind accusations that Donald Trump violated federal election laws by ordering “hush money” to be paid to stripper/porn star Stormy Daniels during the final weeks of the 2016 presidential campaign to conceal the fact of their one-night stand a decade earlier. The reigning media view is that the $130,000 payment, transacted by President Trump’s then-personal attorney Michael Cohen, was a threat and thus a basis for Trump’s impeachment. Far closer to the truth, however, is that Ms. Daniels tried to blackmail Mr. Trump. Her current attempt to nullify a nondisclosure agreement underscores her self-serving motives.

Blackmail, which is closely related to extortion, is illegal. Title 18 U.S. Code, Section 873, states: “Whosoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.” West’s Encyclopedia of American Law defines blackmail as “the crime involving a threat for purposes of compelling a person to do an act against his or her will, or for purposes of taking the person’s money or property.” In essence, a blackmailer demands money or some other thing of value, and in return, he or she promises not to reveal incriminating or embarrassing facts about the target person’s private life. Those who pay blackmail thus do so out of fear. It is the blackmailer, not the targeted victim, who controls the show. Even if the target is wealthy and powerful, that person is at the mercy of the person making the threat. Paying hush money is not a crime; demanding it is.

Based on the available evidence, Stephanie Clifford aka “Stormy Daniels,” now 39, a native of Baton Rouge, La., is a blackmailer. And her target happens to be a sitting U.S. president. If nothing else, the lady aims high. This past April, National Legal and Policy Center summarized the case in the context of the surrounding media circus. Here, then, is a brief timeline. Back in July 2006 Ms. Daniels and Donald Trump, at the time riding high with his NBC-TV show, The Apprentice, met at a celebrity golf tournament at Lake Tahoe, Nevada. The pair quickly became close, dined together, and retired to his hotel suite where, according to Daniels, they got it on. By her own account, as told to Anderson Cooper this March on CBS’ 60 Minutes, the affair was a one-nighter, though elsewhere she has claimed that their secret meetings lasted well into 2007. She described the encounter in a May 2011 interview with In Touch magazine correspondent Jordi Lippe-McGraw. Soon after, Ms. Daniels alleged, a male stranger accosted Ms. Daniels on a Las Vegas parking lot with her baby daughter in tow. “Leave Trump alone,” the man snarled. “Forget the story.” Then, leaning toward her daughter, he taunted: “That’s a beautiful little girl. It’d be a shame if something happened to her mom.” She did not report this criminal threat to police. That said, there was no evidence that Donald Trump ordered the threat or was even aware of it. The magazine didn’t run the story. Ms. Clifford/Daniels continued to make adult film reels.

Stormy Daniels lost her media inhibitions again in October 2016, a couple weeks before Election Day and immediately after the release of a tape to NBC-TV’s Access Hollywood revealing a crude sexual comment Donald Trump had made back in 2005. Trump, though still behind Hillary Clinton in the polls, was closing the gap. Daniels was threatening to go public about their affair unless Trump did something nice for her – like provide money. Candidate Trump, fearful of losing the election on account of this revelation, assigned his personal lawyer, Michael Cohen, to make a deal. And soon enough, a deal happened. On October 27, Cohen wired $130,000 to Daniels’ then-attorney, Keith Davidson. The next day, October 28, Cohen and Daniels signed a nondisclosure agreement in which she agreed to keep quiet about the affair, save among those persons with whom she already had shared the information. This “hush agreement” referred to Stormy Daniels as “Peggy Peterson” and Donald Trump as “David Dennison.” Cohen and Trump were wrapped around this woman’s finger. For it was they, not her, who had everything to lose if the details were divulged. If this wasn’t blackmail exerted by Daniels, it was a pretty good imitation of it.

Discretion being the better part of valor, Stormy Daniels hasn’t been particularly valorous this year. On January 12, 2018, the Wall Street Journal ran an article revealing the existence of the $130,000 payment and nondisclosure agreement. Days later, In Touch, apparently seeing dollar signs, published its dormant interview transcript and promised to pay her $15,000 for her trouble. Legal action would come soon enough. That month, the nonprofit Washington, D.C. watchdog group Common Cause filed separate complaints with the Federal Election Commission and the Justice Department over the $130,000 payment. If Cohen had intended to silence Ms. Daniels to aid Trump politically (as opposed to, say, keeping the affair a secret from Trump’s wife), claimed Common Cause, that was a violation of campaign finance laws. On March 6, Stephanie Clifford/Stormy Daniels’ new lawyer, the pugilistic Newport Beach, Calif.-based Michael Avenatti, filed suit in Los Angeles Superior Court to invalidate the confidentiality agreement on the grounds that while she and Cohen had signed the agreement, Donald Trump did not. He also asserted that when news of the affair went public in January, Cohen used “intimidation and coercive tactics” to force her to sign a false statement denying the affair ever happened. On March 26, one day after her interview on 60 Minutes, Daniels sued Cohen, claiming that his denial of her claims constituted defamation.

Stormy Daniels wasn’t through. On April 30, she and Avenatti sued President Trump for defamation on the basis of an allegedly malicious tweet the president sent a dozen days earlier claiming that Daniels’ assertion of being threatened by a strange man in Las Vegas on a parking lot that day in 2011 was “a total con job.” The complaint read: “Mr. Trump used his national and international audience of millions of people to make a false factual statement to denigrate and attack Ms. Clifford.” Then, on June 6, Daniels and Avenatti again sued Michael Cohen, plus her former lawyer, Keith Davidson, who had previous dealings with Cohen. This complaint accused Cohen of encouraging Davidson to violate her attorney-client privilege. Almost immediately, Davidson countersued Daniels and Avenatti for defamation, and filed a separate suit against Cohen for allegedly illegally recording his phone calls.

The Beverly Hills-based Davidson, a lawyer, is a piece of work in his own right. His specialty is brokering deals between the creators of celebrity sex tapes and the publishers of tabloids and web sites. Accounts in The Smoking Gun and The Huffington Post each have revealed him to be a sleazy operator. Retired superstar pro wrestler Terry Bollea aka “Hulk Hogan” learned the hard way how he operates. Back in 2012, Davidson had contacted Hogan’s lawyer, David Houston, claiming his (Davidson’s) clients were in possession of a video of Hogan having sex with a woman who was not his wife. Negotiations between Davidson and Houston led to probes by the FBI and the Tampa Police Department. The video went up on the Gawker website, Hogan having been unable to obtain a cease-and-desist order. Eventually, in November 2016, Hogan and Gawker Media reached a $31 million invasion of privacy settlement over that tape; a Florida state jury that March had awarded Hogan a combined $115 million (not including $25.1 million in punitive damages) from Gawker, founder Nick Denton and journalist A.J. Daulerio.

But Keith Davidson also has a very real connection to the current president. It was Davidson who had swung a deal last year between former Playboy Playmate of the Year Karen McDougal and American Media Inc., releasing her from a confidentiality agreement so she could speak publicly (no doubt for a healthy fee) about her alleged sexual relationship with Donald Trump occurring during June 2006-April 2007. Ms. McDougal was no innocent babe. In May 2016, after reading about a veiled reference to that affair, she hired Davidson to represent her. Davidson, in turn, told her that the story is “worth millions,” and proceeded to arrange a $150,000 contract with American Media, the parent company of the National Enquirer. The agreement called for McDougal to do cover spreads, write fitness columns, and describe her prior relationships with married men, one of whom was Donald Trump. And Trump’s lawyer, Michael Cohen, in damage control mode, allegedly provided hush money to McDougal. Some of the evidence seized by the FBI this April reportedly contain conversations between Cohen and Davidson.

It made perfect sense, then, that Stormy Daniels would hire Keith Davidson as her lawyer. More than anyone else, he was positioned to snag big dollars for her. Ms. Daniels may have needed extra money during the fall of 2016, but since the revelations of early this year she’s been in the sweet spot. This January she appeared on ABC’s Jimmy Kimmel Live! for a 12-minute segment in which host Jimmy Kimmel handed her several carrots and asked her to pick the one best resembling President Trump’s penis. Kimmel, knowing his audience, also spent part of his March 15 segment promoting a fundraiser for Daniels, saying that making a donation was an “act of patriotism.” Daniels, meanwhile, created a web pay site revealing a “bare all” video of herself that was “fit to topple regimes.” And she launched a nationwide strip club tour, “Make America Horny Again.” Her attorney, Michael Avenatti, did his part in this campaign. On March 16, ten days after filing that civil suit in Los Angeles Superior Court, Avenatti, in an interview on MSNBC’s Morning Joe, told host Joe Scarborough that his client had been intimidated by Michael Cohen. For good measure, he promoted Daniels’ then-upcoming interview on 60 Minutes. All this is potential money in the bank.

The nondisclosure agreement asserts that Stephanie Clifford/Stormy Daniels was “damaged” by Donald Trump. That’s not likely to hold up in court given that their affair, by Daniels’ own admission, was consensual. If anything, she sought to fatally damage Trump’s presidential aspirations. President Trump is alleging, and with good reason, that she harmed him with her threat of “selling, transferring, licensing, publicly disseminating and/or exploiting the Images and/or Property and/or other Confidential Information.” The agreement not only barred these actions, but also required Daniels to turn over any of Trump’s “tangible property” and “permanently delete any electronic copies that cannot be transferred.” If she violates the agreement, she must pay Trump $1 million for each breach.

The motive behind Stormy Daniels’ recent behavior now should be pretty transparent. She wants maximum publicity and money. That $130,000 check from Michael Cohen looked pretty lucrative back in October 2016 when Donald Trump was still an underdog candidate. But Trump’s election gave her an unexpected opportunity to up the ante, hopefully without relinquishing what she had received. Nullifying the hush agreement seemed a perfect strategy. And Michael Avenatti was just the person for that job. An aggressive and shameless self-promoter, he’s been contemplating a run for president in 2020. Such ambitions seem nothing less than absurd. Yet as long as his blitz of lawsuits has the potential to trigger Trump’s impeachment, the anti-Trump portion of the press, which is to say most of the press, has a stake in giving Avenatti all the publicity he wants. His ultimate audience, of course, is Congress. Any number of lawmakers would jump at the opportunity to impeach Trump over this. “If for some reason Mueller does not get him, Stormy will,” Rep. Maxine Waters, D-Calif., crowed to MSNBC correspondent Joy Reid in a phone interview in March. Waters is one of the more extreme voices on Capitol Hill aching for an impeachment, but by no means the only one.

Whether or not President Trump emerges unscathed has a lot to do with how much information federal investigators can extract from Michael Cohen. As it is, they have extracted quite a bit. On April 9, FBI agents, very likely on orders from Justice Department Special Counsel and former FBI Director Robert Mueller, raided Cohen’s home, office and hotel room, seizing emails, tax documents and business records. Squeezed for months by prosecutors, Cohen turned himself into the FBI on August 21 and later that day pleaded guilty to eight criminal charges – five for tax evasion and one each for making false statements to a financial institution, willfully causing an unlawful corporate contribution, and making an excessive campaign contribution at the request of a candidate or campaign. Though the plea deal reportedly includes the possibility of prison time and a fine, it does not include a requirement for Cohen to cooperate with investigators. The next day, August 22, the New York Times claimed that two Trump Organization executives also were involved in the “hush money” arrangement and that Cohen coordinated the payment effort with at least one Trump campaign staffer. And on August 23, President Trump stated in a Fox News Channel interview that the money came from him personally and not from campaign funds. He emphasized that he did not know about the nondisclosure until much later.

The ultimate question is this: Who exactly has broken the law? According to the conventional wisdom, President Trump “silenced” Stormy Daniels by assigning an intermediary, Michael Cohen, to make her an offer she couldn’t refuse. Yet Trump may well be telling the truth in declaring he had no prior knowledge of the payment. Moreover, the claim that Cohen “silenced” Daniels, Mafia-style, with or without orders from above, is little more than speculation. Cohen, for one, rejects such an allegation. Upon publication of the Wall Street Journal expose on January 12, he declared, “Rumors that I have received hush money from Donald Trump are completely false.” As for the related issue of whether Trump reimbursed him in violation of campaign spending laws, such an accusation raises a lot of questions. Bradley Smith, former chairman of the Federal Election Commission and currently a visiting fellow at Princeton University, explained in a guest column in the August 23 print edition of the Washington Post how such an investigation would be based on highly subjective judgments:

Regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage…

Yes, those payments were unseemly, but unseemliness doesn’t make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a “campaign expense” or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a “knowing and willful” violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.

But Cohen is not the normal defendant, and prosecutors almost certainly squeezed him to plead guilty on these charges, in part, for the purpose of building a case for possible criminal or impeachment charges against the president, or even, daresay, “influencing the election” of Trump.

Federal prosecutors, almost indisputably encouraged by Robert Mueller, have demonstrated great zeal in going after Donald Trump in this saga. Their enthusiasm is misplaced. They should be focusing on Stormy Daniels and the network of shakedown artists who have worked on her behalf. Especially egged on by two sleazy lawyers, Keith Davidson and then Michael Avenatti, Daniels has exploited Donald Trump’s fear of negative publicity as a presidential candidate, and then as president, for the purpose of money and notoriety. Many people would call that blackmail. The $130,000 hush payment seemed impressive when Trump was an underdog candidate, but now it looks like small change. That’s why Ms. Daniels wants out of that nondisclosure agreement, and without the risk of getting sued. Going public, in her mind, should lead to riches. If she succeeds in court, she may wind up giving blackmail a good name among people who should know better.