Attorney for porn star seeks Trump testimony on $130K payment

An attorney for Stormy Daniels filed a motion Wednesday seeking to question President Donald Trump and his attorney under oath about a pre-election payment to the porn actress aimed at keeping her quiet about an alleged tryst with Trump.

If successful, it would be the first deposition of a sitting president since Bill Clinton in 1998 had to answer questions about his conduct with women.

Attorney Michael Avenatti is seeking sworn testimony from Trump and Trump’s personal lawyer, Michael Cohen, about a $130,000 payment made to Daniels days before the 2016 presidential election as part of a nondisclosure agreement she is seeking to invalidate. Avenatti’s documents were filed in U.S. District Court in California.

Avenatti is part of a growing list of lawyers looking to question Trump. Attorneys for a former contestant on one of Trump’s “Apprentice” TV shows have said they want to depose the president as part of a defamation suit. And the president’s legal team continues to negotiate with special counsel Robert Mueller over the scope and terms of an interview with the president

Avenatti wants to question Trump and Cohen for “no more than two hours.” In the filing, he says the depositions are needed to establish if Trump knew about the payment, which he refers to as a “hush agreement,” and if he consented to it.

“We’re looking for sworn answers from the president and Mr. Cohen about what they knew, when they knew it and what they did about it,” Avenatti told The Associated Press.

While he noted that “in every case you always have to be open to settlement,” Avenatti said that “at this point we don’t see how this case would possibly be settled.”

In a statement to CBS, Cohen’s attorney David Schwartz called the filing a “reckless use of the legal system in order to continue to inflate Michael Avenatti’s deflated ego and keep himself relevant.”

The White House, which has said Trump denies the relationship, did not immediately respond to requests for comment.

A former businessman, Trump is no stranger to high-stakes litigation, sitting for depositions in contract and defamation lawsuits over the years. Those interviews show his deep experience in giving statements to lawyers, but also show a witness who could be voluble, boastful and, at times, combative.

Georgetown University law professor Naomi Mezey said a deposition presented risks because it is the way to get the president in a vulnerable position. “And President Trump is a particularly vulnerable president,” Mezey said.

Daniels, whose legal name is Stephanie Clifford, detailed her alleged 2006 tryst with Trump in a widely watched interview with CBS’ “60 Minutes” that aired Sunday. She said she’d had sex with him once, shortly after Trump’s wife, Melania, gave birth to the president’s youngest son.

She also said that a man approached her in a Las Vegas parking lot in 2011 when she was with her infant daughter, and threatened her with physical harm if she went public with her story.

The interview prompted a new flurry of legal action, with a lawyer for Cohen demanding that Daniels publicly apologize to his client for suggesting he was involved in her intimidation. Daniels responded by filing a revised federal lawsuit accusing Cohen of defamation.

Cohen has said he paid the $130,000 out of his own pocket and that neither the Trump Organization nor the Trump campaign was a party to the transaction. Avenatti has argued that the “hush agreement” Daniels signed in October 2016 is invalid because it was not signed by Trump.

A hearing before Judge S. James Otero in the federal court’s Central District in Los Angeles is set for April 30.

As precedent, the motion notes that Clinton was deposed while in office in 1998 during Paula Jones’ sexual harassment suit. That came after the Supreme Court ruled that a sitting president was not immune from civil litigation on something that happened before taking office and was unrelated to the office.

Jones’ case was dismissed by a judge and then appealed. The appeal was still pending when Clinton agreed to pay $850,000 to Jones to settle the case. He did not admit wrongdoing. Later in 1998, Clinton also gave grand jury testimony about his relationship with White House intern Monica Lewinsky.

WAS THE $130K ILLEGAL?

The transaction itself does not seem to be illegal, but the failure to report it either as a campaign contribution or on government ethics forms might be.

WHO OBJECTS?

Two complaints have been filed by watchdog groups. Common Cause says in a complaint to the Federal Election Commission that the payment may violate federal campaign finance law in several respects. It said it should have been reported as an in-kind campaign contribution and was far above the $5,400 Cohen could give Trump’s campaign. Citizens for Responsibility and Ethics in Washington also has asked the Justice Department and the Office of Government Ethics to investigate whether the payment to Daniels, whose legal name is Stephanie Clifford, may have violated federal law because Trump did not list it on his financial disclosure forms.

Cohen has said neither the Trump Organization nor the Trump campaign was a party to the transaction with Daniels and he was not reimbursed for the payment. However, Daniels’ attorney Michael Avenatti told “60 Minutes” he has documents showing Cohen using his Trump Organization email address in setting up the payment and that the nondisclosure agreement was sent by FedEx to Cohen at his Trump Organization office in Trump Tower.

ISN’T THIS JUST A TECHNICALITY?

The groups that filed these complaints say their beef isn’t just about technical violations of obscure election and ethics laws. They say the complaints may open the door to more serious allegations that could force Cohen, and potentially Trump, to testify under oath. Common Cause vice president Paul S. Ryan said Cohen should be asked under oath about Trump’s involvement in the payment. “Michael Cohen knows whether Donald Trump is directly involved in all of this,” Ryan said.

WHAT’S THE PENALTY FOR ILLEGAL CONTRIBUTIONS?

There can be both civil and criminal penalties if investigators determine that the campaign or Cohen intended to keep the payment secret. This is not an easy standard to prove in court. Prosecutors failed to get a conviction against former presidential candidate and Sen. John Edwards on charges that he received illegal contributions and falsified documents to pay for the silence of his pregnant mistress as he campaigned for president in 2008. Ryan said a case against Trump could be stronger because the payment to Daniels was made days before the election when she was likely to go public with her story.

ANY CONNECTION TO THE RUSSIA PROBE?

Russia’s election meddling and the alleged Daniels affair do not appear to be linked. But special counsel Robert Mueller has broad investigative authority, and Cohen has been linked to other aspects of the investigation, including efforts in 2015 to pursue a Trump Tower real estate development in Moscow. If Mueller believed he could leverage Cohen’s testimony about Russian matters, he could have reason to look into the payment to Daniels.

WHAT OTHER LAWSUITS ARE INVOLVED?

Daniels has filed a lawsuit to free herself from the non-disclosure agreement she signed when she accepted the money. Cohen also is pursuing claims through arbitration against Daniels for violating the non-disclosure agreement. Cohen says Daniels could owe $20 million for violating the agreement. It’s possible that if Cohen does not drop the effort, Daniels’ lawyer could try to question Trump about the arrangement.

DOES A SITTING PRESIDENT HAVE TO TESTIFY?

Probably. The Supreme Court ruled in 1997 that President Bill Clinton was not protected from a civil sexual harassment lawsuit filed in federal court by former Arkansas state employee Paula Jones. The high court has never definitively said whether a president must answer questions in a criminal proceeding, including the kind of grand jury that Mueller has empaneled. But it has suggested he would have to comply. Trump also is facing a defamation lawsuit in a New York court that was filed by Summer Zervos, a former contestant on “The Apprentice.” A judge ruled the lawsuit can move forward while the president is in office.