Maybe a lawyer can clear this up for me. If you commit a criminal act such as violating the FEC

[Augiedog]

rules concerning the campaign donation limits as Cohen did in paying Stormy Daniels $130,000 purportedly on behalf of president tRump, is the product of that act null and void. Meaning, is the Non disclosure agreement unenforceable?

[Sedona]

1. Furthermore...

Shouldn't he lose his law licence?

[Freelancer]

2. How can someone signing a fake name "DD" be legal?

Wouldn't signing a document with a fake name be fraud? If you took a document with a made-up name to a notary public, they wouldn't witness it. They'd probably call the police.

[Cattledog]

5. No, happens all the time in NDAs

[fescuerescue]

23. A signature is any marking you want it to be.

Most signatures aren't even legible.

A notary doesn't the content or ink strokes of a signature...only that the person making those strokes is the person claimed to be

[Jarqui]

3. Normally, consideration given binds a contract.

That's why Trump did not have to sign it. She got $130,000 and therefore, on that basis of consideration given, it is probably enforceable.

BUT if the consideration came to her illegally, that may be a way out - though a judge may allow them to hold her harmless from the illegal contribution by letting her keep the money at the request of the other party and therefore sustain the contract.

The key may be if the company they (Cohen/Trump) set up was illegal on the basis of what it was trying to do - bypass the FEC. If that is the case, the contract would be illegal and unenforceable because the party is not legal - the company is not doing what it set out to do when it was incorporated.

In terms of Cohen's involvement, he is risking being disbarred here - if Mueller gets to him, this could be major bad news for Trump. He could be screwed either way because if he flips on Trump, Trump could complain that he should be disbarred for violating attorney-client privilege or something like that. Cohen is in a heck of a pickle now and everyone - the FEC, the Dems, Trump, Mueller, the FBI, etc all know it.

I do not see how this could be good news for Trump - that his fixer is caught in a legal vice that looks very difficult to escape from.

[triron]

4. Evidently her lawyer thinks it is invalid and so advises his client.

Why would he knowingly mislead her???

[Jarqui]

6. To me, this was a concerted effort to bait Trump or get his people to react

Some of their comments today reacted. Cohen reacted way back to the Wall Street Journal story.

I do not think Stormy's lawyer is being genuine and forthright with the public on why he thinks the agreement is invalid (saying it's simply because Trump didn't sign it). I suspect his real legal arguments are or will be more nuanced and beyond simple the lack of signature. The lack of signature is a simple thing the media could run with and the public grasp (even though I doubt it will hold much water) to stir it up and pressure them into more mistakes via intense scrutiny.

Her lawyer is allowed to challenge the contract on that basis (however unlikely) so away goes the media coverage.

[Cicada]

7. I vaguely recall that she was promised reimbursement

[jberryhill]

10. Do you think in every lawsuit that at least one client is being misled?

Lawsuits go on every day in this country - tens of thousands of them. Most have, on each side, a lawyer advising a client.

If they don’t settle - as the overwhelming majority of them do - one side wins and one side loses.

That does not mean the losing side was “misled”. In most disputes there are arguments that could go either way, or have enough of a chance to win.

[pnwmom]

8. Is partial consideration enough? Part of the consideration

was DD's agreement, verified by his signature, to certain promises -- which only DD, not Essential Consultants, could make.

[jberryhill]

9. Have those promises been kept?

[pnwmom]

13. So far. But she was depending on the promises being kept permanently, not just for a year.

And DT didn't sign the contract agreeing to these clauses.

[jberryhill]

14. Two things...

1. His signature is not on the copy produced as an exhibit to her complaint. The contract expressly allows counterpart originals (ie where you don’t have one copy with everyone’s signature)

2. The premise that the promises potentially would not be kept is not itself a breach. The money was paid, and the promises kept. That is called acceptance by performance in contract law.

[pnwmom]

17. Yes, to No. 1. But I trust Stormy's attorney that they were never given the

signed counterpart. (And I've never heard Cohen state that DT signed it, have you?)

So assume for the sake of argument that DT never signed the contract. How could DT make promises and releases if he didn't know about the contract, as DT's people have been claiming? How could Essential Consultants make promises on DT's behalf?

Also, the Side Letter, which is incorporated into the original Agreement, says that “when each Party has signed and delivered one such counterpart to the other Party,” the Agreement will be “binding and effective as to the Parties.”

That seems to say that if counterparts are signed, they'll be delivered to the other Parties.

[Jarqui]

11. A contract is an agreement between two or more parties

Simply stated, they said 'we'll give you $130,000 in consideration of this contract if you keep your mouth shut'

When she accepted the $130,000 consideration, that bound the contract and her to keep her mouth shut - whether Trump signed the contract or not. Listen to some of the lawyers on TV on that - unfortunately, they're Trump leaning but they're right on that point. It's pretty clear cut legally.

It goes back to old English common law, when a lot of contracts were not in writing. If a farmer gave someone a cow in exchange for seed and it was established the cow was given to the other party, then the farmer had an enforceable contract that the other party had to provide the seed the farmer was to receive in exchange for the cow because the farmer had given consideration: the cow. Nothing in writing - nothing signed ... but a legally valid contract just the same. How much seed the farmer would be due might be debatable but again, some seed was due because the premise that the farmer gave away his cow for nothing is so unlikely and civil law is often based on the balance of probabilities.

There are other things that could render the contract invalid if:
- she was under duress (maybe threats) when she agreed to it
- there were aspects of illegal behavior associated with it or the parties related to the contract (ie the FEC issue or a bogus company not doing what it was intended to do, etc)
- she was deceived when she entered into the contract - there was some misrepresentation or fraud

So I'm not saying Stormy's lawyer has no grounds to contest the NDA. I do not know for sure one way or the other

[Jarqui]

12. I found a link to the actual contract and it is more complicated than I thought

https://www.vox.com/policy-and-politics/2018/3/13/17109656/stormy-daniels-donald-trump-lawsuit-affair-porn-adult-arbitration-michael-cohen-payoff

My understanding from the discussions in the media was the contract was between Stormy and the company created by Cohen. I had not seen it until minutes ago. There is an "and/or" at the top of the contract when defining the parties to the agreement that makes that blurry. In fact, after a first read, I'm inclined to side with Stormy's lawyer that Trump should have signed it to overcome the ambiguity of the interpretation of "and/or"

"and/or" tries to say the contract is between three parties (Trump, Stormy & the Cohen company) or two parties (Stormy & the Cohen company) - which is pretty fucked up. It should clearly define who the contract is between with zero ambiguity. As Stormy's lawyer points out, there are several places where a blank is left for Trump to sign it so it was contemplated that he may or would be signing it and that would be important for Stormy to know that Trump agreed to this.

I have not had the chance to fully digest the claim or the contract, etc but simple consideration given does not seem to clear up this problem. I think Cohen messed up there and left himself open to a fair legal question on the contract.

Upon reflection, this is so typical of Trump's clumsy ways, isn't it?

EDIT:
Here's a couple of google links to quickly demonstrate (I'm sure I could find better but do not want to waste time) the stupidity of putting "and/or" in a contract
https://weagree.com/drafting-principles/6-typical-drafting-habits-and-legalese/6-2-dos-and-donts/a-think-first-andor/
http://www.adamsdrafting.com/and-slash-or-as-scapegoat/
and that ignores where Cohen put it -a worst possible place when defining the parties to that contract

Trump/Cohen are going to have a tough time on this as it falls into the most rudimentary pitfalls of bad legal language. Makes me wonder how good of a lawyer Cohen is.

[pnwmom]

16. There seems to be a growing consensus (among legal analysts in the MSM) that this was

a badly drafted contract.

Thanks for the 2nd link -- interesting!

My question about consideration has to do with the fact that, in the contract, DD (Trump) promises to release Stormy from some legal claims he'd been threatening her with. Is that something Cohen, on behalf of Essential Consultants, could legally do? If these promises were part of the consideration (not just the money), shouldn't Trump have signed to indicate his agreement to hold her harmless?


These are the parts I'm referring to.

Section 2.5 DD agrees to release PP from various legal claims

Section 2.6 says these recitals are “essential, integral, and material terms of this Agreement, AND: “The Parties enter into this Agreement in consideration of the promises, covenants, and conditions set forth herein, and for good and valuable consideration . . .”

p. 6. , 4.3(a) “Representations & Warranties and Agreements by DD. The following agreements, warranties, and representations are made by DD as material inducements to PP to enter this Agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon:

4.3(b) DD warrants and represents that, as relates to or in connection with any of PP’s attempts to sell . . . prior to the date of this Agreement, DD and his counsel will refrain from pursuing any civil action against PP. . . .

p. 11, Section 6 MUTUAL RELEASES

Section 6.1 (DD releases and forever discharges PP from various claims)

Section 6.4 and 6.5, the parties waive various things

8.6 . . . Each of the Parties represents and warrants . . . that this Agreement, when signed by all Parties, is a valid and binding agreement, enforceable in accordance with its terms.

[Jarqui]

19. Yep and that is where the "and/or" is a real problem

when defining the parties.

They encounter problems with that "and/or" phrase throughout the contract.

When a judge encounters that, if he/she doesn't toss it, he/she might try to look at it as if "and" was throughout ... but that would mean Trump needed to sign it => which leads to Stormy's lawyer's point - because Trump did not sign it, half of the "and" party was not consummated and therefore, the agreement is null and void/unenforceable.

Cohen messed up for sure in the writing and/or ( execution of the contract - in a rather rudimentary way.

But Cohen intimidated her to lie. He gave her no further compensation. Got her to sign something that was a lie in Jan 2018 - as proven by the original agreement he had her sign. A lawyer coercing someone to act like that with threats is illegal and at the very least a suspension from practicing law.

On top of that, he has this funny business with this oddly created company and the FEC. He's the one in real trouble here unless he caves in and names Trump.

As for the threats of $20 mil in damages against Stormy, that is now a matter of public record and a judge's eyebrows will be raised on why they only gave her $130,000. The amount of consideration they gave her would limit the damages they can claim to some extent because there otherwise has been some implied misrepresentation of the value of her services (being quiet).

I think Stormy is in pretty good shape on this and the bulk of trouble lies with Trump & Cohen. The NDA is so poorly written, Cohen should not charge Trump for that.

[pnwmom]

20. Well, Cohen claims he paid the $130K out of his own pocket,

so why would he have charged DT for drafting a lousy NDA?

On top of all this, Cohen is implicated in Russia up to his eyeballs. It will be satisfying to see him go down.

ON UPDATE:

This analysis about the arbitration action makes sense :

http://www.creditslips.org/creditslips/2018/03/debbie-does-damages-the-stormy-daniels-contract-clusterfck.html

As far as I can tell, there has been no attempt to enforce the arbitration award of the preliminary restraining order. In other words, EC (Michael Cohen) got an ex parte award from an arbitrator, but no court order to enforce it. My search for dockets on Bloomberg Law involving "Peggy Peterson" or "EC LLC" didn't turn up any actions to enforce the award. And frankly, I'm not surprised. I don't think this award is enforceable because the arbitrator had no authority to even hear the matter, much less grant the relief she granted. The arbitration provision governs only disputes between PP and DD, not disputes involving EC, and the preliminary relief provision is only for DD, not for EC. EC has as much standing to seek preliminary injunctive relief via arbitration as Sasquatch.

[Jarqui]

22. He's a lawyer - a parasite on Trump and his businesses

He's charging him somehow.

Maybe he got his $130,000 back this way:
https://slate.com/news-and-politics/2018/02/michael-cohen-stormy-daniels-usd130-000-rent-payments-does-it-add-up.html

Who knows?

He also has expenses for setting up the company, doing it's accounting/returns and putting the NDA deal together.

There should be limits to how much charitable work he needs to do for the billionaire Trump.

I liked much of that analysis. I agree that Stormy is in pretty good shape here.

The thought that this agreement was cloned from others may give the others the ideas Stormy's lawyer had about it ... which may allow others under this style of NDA to come forward (& maybe cash in).

Someone ought to do a search for companies Cohen started ... though that may have been isolated to those who were a threat to the campaign

[ChoppinBroccoli]

15. Well, First Of All, Contracts For An Illegal Purpose Are Void

So if the intent of the contract was to obstruct justice, the contract is void. Also, if it was a contract for prostitution (which is illegal), it's also void. And finally, as I've stated before, even a completely legal and binding NDA can be overcome in a court of law if the person bound by it is subpoenaed to testify in court. That's why I think this particular NDA wasn't worth the paper it was written on.

Second of all, she can claim all sorts of things that nullify its legality, like she only signed it under duress (which I find highly likely), or she lacked the legal capacity to enter into a contract (i.e. she was drunk or under the influence of drugs, etc.--also highly likely).

Even if you assume that the contract was completely legal and totally binding, his only recourse for her violating it would be to sue her civilly for money damages. And you know what that means: it ends up in a court, where there will be extensive discovery, documents exchanged, depositions taken, testimony UNDER OATH, etc. In other words, a whole lot of stuff Trump definitely DOES NOT want to be aired in a public forum.

[mythology]

18. You can't seriously claim she was drunk or drugged without even a shred of evidence

Also what was the justice being obstructed? Having an affair isn't illegal. Immoral and unwise, sure, but not actually illegal. Claiming the contract was for prostitution is a stretch. The contract was drawn up long after the sexual acts, and was to not talk about them, not as payment for sexual services. I suspect there is a direct correlation between things you want to be true and things you find highly likely in this case.

[jberryhill]

21. If you rob a bank and buy a candy bar - the store gets to keep the money for the candy