The Fix | Analysis
March 8, 2018 at 12:02 PM
White House press secretary Sarah Huckabee Sanders on Wednesday tried to dismiss reporters' questions about President Trump and porn star Stormy Daniels by claiming that the president had already prevailed in a legal battle.
“This case has already been won in arbitration,” Sanders said.
Sanders's assertion surprised journalists who have been covering a lawsuit that Daniels just filed Tuesday.
“You said that there's arbitration that's already been won?” CBS Radio's Steven Portnoy asked. “By whom and when?”
Sanders offered no details, referring inquiries to Trump's personal attorneys, but she appears to have been referring to a temporary restraining order, issued last week by a private dispute-resolution firm, that bars Daniels from talking publicly about her alleged affair with Trump and from suing the president.
Daniels, obviously, is not complying with the restraining order. She has sued Trump anyway, and her attorney said Wednesday NBC's “Today” show that she had a sexual relationship with Trump more than a decade ago.
The situation is rather confusing, which is why we're tackling some key questions here.
Arbitration is an alternative to litigation. The idea is to keep a proceeding out of court and out of public view. The nondisclosure agreement that Trump lawyer Michael Cohen and Daniels reached in connection with the $130,000 payment she received from Cohen in October 2016 mandated “binding confidential arbitration of all disputes which may arise between them” — a logical arrangement, since one goal of the NDA was to conceal the mere existence of the NDA.
The NDA, which has been leaked to the media, required that any dispute be settled by a “solo, neutral arbitrator” at one of two private firms. One of those firms, Action Dispute Resolution Services, issued the restraining order against Daniels. The arbitrator was retired Los Angeles Superior Court Judge Jacqueline A. Connor.
Based on available evidence: not really.
The restraining order is a victory, of sorts, but Connor made clear that her decision was a “tentative ruling” and that Daniels was prohibited from discussing Trump “pending further determination.”
Because she does not recognize its legitimacy.
Daniels's attorney, Michael Avenatti, decried what he called “bogus arbitration” in an appearance on CNN Wednesday night, saying “the entire process is absolutely untoward and improper.”
“She had no idea it was happening, no opportunity to respond, no opportunity to present her case, no opportunity to have a hearing prior to the issuance of the [restraining] order,” Avenatti said.
Daniels might feel blindsided, but the nondisclosure agreement did state that if she threatens to go public — her manager said last month that Daniels “is going to tell her story” — then Trump is entitled “to immediately obtain, either from the Arbitrator and/or from any other court of competent jurisdiction, an ex parte issuance of a restraining order and preliminary injunction or other similar relief … without advance notice.”
That's what the lawsuit is all about. Daniels's position is that she does not have to stay quiet or go through arbitration because Trump never signed the NDA, rendering the agreement and its provisions unenforceable.
“She agreed to arbitration, but that agreement fell by the wayside when the party to that agreement, namely Mr. Trump, at the time did not sign it,” Avenatti said on CNN. “That agreement is null and void. It doesn't mean anything.”
In the lawsuit filed Tuesday, Daniels is asking a court to officially invalidate the NDA.