Trump seeks to make actress’ lawsuit moot

Agreeing with an opponent's primary contention seems like a novel legal strategy, but it just might be enough to get Stormy Daniels' contract dispute with President Donald J. Trump dismissed.

The adult film actress, whose real name is Stephanie Clifford, filed a lawsuit contending she was paid $130,000 as part of a non-disclosure agreement with Trump that wasn't just unenforceable, but also illegal as it violated election law and suppressed "speech on a matter of public concern." Stephanie Clifford v. Donald J. Trump, 18-CV02217 (C.D. Cal., filed March 8, 2018).

Over the course of six months of litigation, Trump and his former personal attorney, Michael Cohen, argued in favor of the contract's enforceability -- until they abandoned their claims of an enforceable agreement with Daniels in court documents filed over the weekend. But that's likely a change in legal strategy more than a change of heart as their concession is paired with a request to dismiss the case, reasoning the central legal issue is now moot.

With the election behind him and no end in sight to media appearances by Daniels and her attorney, Michael Avenatti, in relation to the case, Trump's legal team may have reasoned they should just let their claims against Daniels go and try to end the focus on them, according to Lincoln Bandlow, a First Amendment litigator and partner at Fox Rothschild not involved in the matter.

"He may have decided that he doesn't need the money back, and that the whole point of the nondisclosure agreement was to keep her from talking. And hey, she's already talking," Bandlow said.

Despite the blessing to speak freely, an opposition filed by Avenatti on Monday indicates Daniels won't be taking the olive branch. Avenatti said the offer comes far short of the ruling they sought. And since the contract's void, Avenatti said Daniels won't have to honor the defendants' request to return the $130,000.

"Defendants' sudden desire to escape having to defend this action without any meaningful consequence reflects a profoundly troubling reality -- that defendants have been shamelessly deceiving this court and the American public for more than six months," Avenatti wrote.

Trump's acquiescence comes only after the election, Avenatti contends, when the information Daniels was prohibited from discussing could have potentially sunk his political aspirations. He said abandoning their argument was proof of the defendants' dishonesty throughout litigation, claiming Cohen's request for a stay in the case pending the resolution of his New York criminal investigation was just a ploy to delay his and Trump's depositions.

If Avenatti can find a factual dispute to press, Bandlow said he might be able to convince U.S. District Judge S. James Otero to keep the case alive. But he didn't see evidence of that in Daniels' reply.

"I'm not sure what controversy Avenatti says still exists. It seems like a lot of bluster about the context of strategy in the litigation," Bandlow said. "No, we can't go through discovery and depose Trump just because you want to. We have to have an actual controversy."

Bandlow said Avenatti's primary motive in Daniels' multi-pronged legal battle with Trump seems to be an opportunity to depose Trump, but it's hard to see how Otero orders a deposition in this case now that the central issue is ostensibly resolved.

"Avenatti's approach seems to be to say that Trump did things during the litigation that showed he had no basis for the litigation," Bandlow said. "Otero may simply respond 'OK, then bring a malicious prosecution action against him. But until you do, I no longer have a case and controversy, and therefore I no longer have jurisdiction over the matter.'"

Mark Geragos, an attorney at Geragos & Geragos PC not involved in the matter, said he saw the filing and the suddenly vulnerable position Daniels' case finds itself in as "the perfect example of litigants and lawyers not thinking two, let alone three steps ahead."

"This was not just predictable, but inevitable," Geragos said, though he said this was "clearly not the end of the story."

Even if this case is dismissed, Geragos is likely right about that, as the matter is one of three related lawsuits involving Daniels and Trump currently before Otero. Trump's counsel, Charles Harder of Harder LLP, filed an anti-SLAPP motion last week to have Daniels' defamation lawsuit against Trump dismissed.

The third related lawsuit, filed by Daniels against her former attorney, was recently transferred from Los Angeles County Superior Court.

Otero is expected to address the defendants' motion to dismiss at a Sept. 24 hearing.