{UAH} Could Trump’s Missing Signature Force Him to Be Deposed?
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Could Trump's Missing Signature Force Him to Be Deposed?
© Jeenah Moon for The New York Times In pleading guilty to breaking campaign finance laws and other charges last week, Mr. Cohen said Mr. Trump had directed him to arrange payments to two women, one of whom was Ms. Clifford, to keep them from speaking publicly about affairs they said they had with Mr. Trump.In the history of presidential scandals, it is often the hidden things that end up proving decisive. Think, for example, of Monica Lewinsky's stained blue dress or of Richard M. Nixon's secret Oval Office tapes.
But in President Trump's recent scandal involving Stephanie Clifford, the pornographic film star known as Stormy Daniels, something that was never there to begin with could play an unexpected role.
The missing item is the signature that Mr. Trump failed to place on Ms. Clifford's non-disclosure deal two years ago. And if her lawyer has his way, there is a chance that the inch-long blank space could force Mr. Trump to testify about what he knew of the arrangement.
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As the world found out in more detail last week, the man who structured the hush-money payment, Mr. Trump's former lawyer and fixer, Michael D. Cohen, pleaded guilty to several charges in federal court.
Under the arrangement, Ms. Clifford was paid $130,000 just before the 2016 elections to not speak publicly about an affair that she said she had with Mr. Trump. In admitting to the scheme, Mr. Cohen not only implicated himself, but also possibly his former boss, in a violation of federal campaign-finance law.
It remains unclear, however, whether Mr. Trump, as president, can be held accountable for that offense.
That's where the missing signature comes in.
The lawsuit was stayed this spring after federal agents raided Mr. Cohen's office and apartment, prompting him to invoke his Fifth Amendment right against self-incrimination to avoid having to testify in the suit. A federal judge agreed that if Mr. Cohen became a witness in the lawsuit, he could expose himself to legal risks in the F.B.I.'s investigation.
The whole thing might have been dismissed as just another publicity stunt from Mr. Avenatti, who has a penchant for making provocative statements about Mr. Trump and who has even mused about running for president in 2020.
But now that Mr. Cohen has pleaded guilty, he may no longer be able — or choose — to avail himself of the Fifth Amendment's safeguards. Because of that development, Mr. Avenatti vowed last week to ask the judge to lift the stay and to let him question Mr. Trump about Ms. Clifford by taking his deposition.
"The developments of today will permit us to have the stay lifted in the civil case & should also permit us to proceed with an expedited deposition of Trump under oath about what he knew, when he knew it, and what he did about it," Mr. Avenatti wrote on Twitter on the day that Mr. Cohen pleaded guilty. "We will disclose it all to the public."
The legal maneuver arguably remains something of a longshot for Mr. Avenatti.
Still, if he is eventually permitted to depose Mr. Trump, he could direct his inquiries toward several unanswered questions that have lingered at the heart of the hush-money arrangement:
Was Mr. Cohen indeed reimbursed, as prosecutors claim, by the Trump Organization? Which executives there were involved in the transaction? Was the payment made, as Mr. Cohen noted in his guilty plea, to influence the election?
The non-disclosure agreement silencing Ms. Clifford was dated Oct. 28, 2016, and was meant to be signed by four people: her first lawyer, Keith Davidson; Mr. Cohen; Ms. Clifford herself (who was identified as "Peggy Peterson"); and Mr. Trump (who was identified as "David Dennison.")
While it may be curious that Mr. Trump never signed the deal, the omission squares with his latest explanation for his role in the imbroglio.
After denying for months that he slept with — or paid — Ms. Clifford, the president said last week that even though he was the source of the money, Mr. Cohen struck the deal without his knowledge and that he learned about it only after it was inked.
Charles J. Harder, a lawyer representing Mr. Trump in the lawsuit, did not return phone calls on Monday seeking comment.
Legal experts were divided about whether the missing signature was sufficient legal ground to take Mr. Trump's deposition.
"This is exactly the kind thing that Avenatti can take a deposition about," said Debra Katz, an employment and whistleblower lawyer based in Washington who has negotiated several non-disclosure deals. "Because there's no criminal case pending now and Cohen is out of jeopardy, it would be appropriate for the court to lift the stay and let the case go forward."
But Douglas Wigdor, a New York lawyer who has represented several people — some with non-disclosure deals — who have sued Fox News for sexual harrassment, said it was unlikely that the president could be deposed.
First, Mr. Wigdor said, Mr. Cohen could ask for the stay to remain in place until he is sentenced later this year and his criminal case is formally completed. It also often happens, Mr. Wigdor said, that executives of companies are sued, and the companies themselves negotiate the deals and pay the settlements without the executives ever being involved.
As long as Ms. Clifford was paid, Mr. Wigdor added, "Trump could have known or not known — signed or not signed — it doesn't matter."
Mr. Wigdor pointed out that a separate lawsuit that Mr. Avenatti filed in June, accusing Mr. Cohen and Mr. Davidson of colluding to quash Ms. Clifford's tale of an affair with Mr. Trump, stood a better chance of resulting in depositions.
If it could be proven, Mr. Wigdor said, that the two lawyers did collude with one another — especially for Mr. Trump's benefit — then Mr. Avenatti would have "a stronger argument" for asking Mr. Trump what he knew about the deal.
Dolores Troiani, a lawyer who helped Andrea Constand overcome a non-disclosure agreement to testify against Bill Cosby, leading to his sexual-assault conviction earlier this year, suggested that the smartest move for Mr. Trump and his team would be to nullify Ms. Clifford's contract on their own.
The president could only be deposed, Ms. Troiani said, if he continues seeking to enforce the deal.
"If there is no contract, then no one is breach of it — and it's done," she said. "My advice? Just let it go."
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