President Trump is probably powerless to stop “60 Minutes” from airing an interview with the porn star who claims to have had an affair with him, according to legal experts.
After BuzzFeed reported on Sunday that Trump's lawyers might try to block CBS from broadcasting Stormy Daniels's interview with Anderson Cooper, Daniels told The Washington Post that “we will see what happens” to the segment.
Yet it is almost certainly too late for Trump to disrupt the telecast, which CBS has not yet scheduled. A court order requiring Daniels to honor a nondisclosure agreement she signed in 2016 would not force “60 Minutes” to spike an interview she and Cooper taped last week.
“She's already given the interview,” said defamation attorney Megan C. Deluhery, a partner at Todd & Weld in Boston. “CBS would need to be a party to the suit to be restrained from airing the interview, and since the obligation on Ms. Daniels arose as part of a private settlement, I don't see much legal basis to enjoin CBS — a stranger to the settlement agreement — from doing anything.”
Daniels accepted a $130,000 payment shortly before Election Day 2016 in exchange for her promise to remain silent about the alleged affair, which Trump denies. But her spokeswoman said last month that Daniels planned to “tell her story,” prompting Trump's lawyers to obtain a temporary restraining order from a private arbitrator.
Daniels flouted the restraining order and sued Trump last week, contending that the nondisclosure agreement should be voided because Trump never signed it. Although a judge might rule that Daniels must stay quiet until the lawsuit reaches a conclusion, an injunction would not undo the interview she gave last week or compel CBS to pretend it didn't happen.
To thwart “60 Minutes,” Trump would need to secure a separate order against CBS — a prior restraint of speech that legal precedent suggests is unconstitutional.
“This is a nonstarter,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. “So clearly a nonstarter that I can't imagine they'd try it.”
Lata Nott, executive director of the Newseum Institute's First Amendment Center, said the president's lawyers would have to convince a court that “whatever is about to be aired would cause immediate, irreparable harm to the U.S. If the Pentagon Papers didn't meet that standard, can't imagine that this '60 Minutes' segment with Stormy Daniels would.”
In the 1971 Pentagon Papers case, the Supreme Court ruled that the New York Times and The Washington Post could not be stopped from publishing documents related to U.S. military actions in Vietnam, despite the government's argument that such reporting would endanger national security.
Trump's attorneys could argue that CBS is going to defame the president by airing the Daniels interview, but “the law is, as a general rule, you don't get injunctions because of an anticipated defamation,” said George Freeman, a former in-house lawyer for the Times who is now executive director of the Media Law Resource Center.
“Whether or not it's going to be defamatory, none of us can know until after we see the program,” he added. “We don't know what they're going to say, and we don't know if it's true or not.”
Trump can hope that the prospect of a libel suit will scare CBS out of airing the interview, or he can hope that further reporting will cause “60 Minutes” to conclude that Daniels is not credible and thus abandon the interview for journalistic reasons. Otherwise, he probably cannot keep the interview off the air.