This post has been updated.
David Schwartz is a lawyer and spokesman for Cohen, Trump's personal lawyer who has said he “facilitated” the Daniels payment. On CNN Wednesday night, Schwartz seemed to categorically deny that Trump was involved — or at least that he had knowledge of the payment on the front end. Here's the exchange:
BURNETT: Okay. It seems like a simple question, and you are Cohen's spokesperson in this. So, can you say unequivocally that the president was never in any way aware of the $130,000 of the agreement itself?SCHWARTZ: The president was not aware of the agreement. At least Michael Cohen never told him about the agreement. I can tell you that. And you asked a whole bunch of questions, so let me cover that.BURNETT: Yes.SCHWARTZ: So, you asked about 12 days before —BURNETT: Not aware of the agreement. How about the money?SCHWARTZ: He was not aware of any of it.
Schwartz extended the denial further Thursday morning on NBC News, adding that Trump "100 percent” did not reimburse Cohen. That would seem to foreclose the possibility that Cohen made the arrangement without Trump's knowledge but later billed him for it without explaining the charge. (The Wall Street Journal, for what it's worth, has reported that Cohen at one point groused to others that Trump hadn't reimbursed him for the payment.)
But why wait all this time to deny Trump was involved? Cohen's initial statement on all of this ruled out possible involvement from the Trump Organization and the 2016 campaign, but it conspicuously didn't address Trump personally. And the White House has repeatedly brushed aside this question.
There are pros and cons to saying Trump wasn't involved. Part of the reason for the delay could be that it might undermine the nondisclosure agreement Daniels signed. Schwartz argued on CNN that the NDA would still be valid because Trump was merely a third-party beneficiary, but some experts are dubious.
Former federal prosecutor Renato Mariotti said that, the way the NDA was written, there “was no deal without [Trump's] knowledge or consent.”
“The contact binds 'DD' (Trump) in many ways and grants enforcement remedies solely to Trump,” Mariotti said. He added: “Cohen could argue that when the contact lists various rights and responsibilities for 'DD,' it really means the LLC, but I doubt a judge would buy that. The contract appears to bind DD and grant him rights.”
Michael Cohen's attorney just claimed on @OutFrontCNN that Trump was not aware of the Stormy Daniels agreement or the payment, which means that there was no contract between Trump and Daniels, and Daniels can release the materials. Why would he admit this on national television?— Renato Mariotti (@renato_mariotti) March 28, 2018
David Super, a law professor at Georgetown University, said Schwartz's admission was “amazing” and could even lead to legal jeopardy. “If true, that opens up Cohen and anyone else involved in soliciting the agreement to fraud charges because the agreement certainly purports to make commitments, beyond the money, that only Trump could make,” Super said.
University of Minnesota law school professor Carol Chomsky said the exclusion of Trump “does undercut the validity of the agreement, because it creates ambiguity in what was intended and may demonstrate some misrepresentation in the formulation of the agreement.”
But former top Justice Department official Harry Litman said that, while the admission might complicate the NDA somewhat, the biggest takeaway is that it protects Trump.
“It’s also the expected and smartest — in the sense of most-insulated — tack: Cohen the Mr. Fix-it who knows what the president needs and gets it for him without even putting him in the potentially vulnerable position of having to discuss it,” Litman said.
Perhaps the White House simply wanted to keep quiet and hope that this whole thing would go away (wrong!). And maybe Cohen and Schwartz have decided the NDA may be a lost cause — given that Daniels is now flouting it anyway — and that it's more important to insulate Trump.
It's worth emphasizing here, though, that the White House still hasn't weighed in. The person who is denying Trump was involved is a lawyer for a party to an agreement who says Trump wasn't involved in that agreement. Schwartz has no responsibility or accountability to the White House here. And even he seems to suggest it's possible Trump might have learned of the agreement without Cohen telling him. “The president was not aware of the agreement,” he said, before clarifying: “At least Michael Cohen never told him about the agreement.”
Which means it's still worth getting the White House's word on this. Don't hold your breath.