Long ago, back in law school, WC and his girlfriend had a cat, Milton, named after the late Milton Pikarsky, the head of the Chicago Transit Authority. Milton was an impulse acquisition from two little kids with a mess of kittens in a cardboard box at the Chicago Avenue “L” station.1 Milton had behavioral issues. Some of those issues led him to crap in the middle of the kitchen floor, and then spend half an hour or so trying to cover up the mess by futilely pawing the linoleum floor. After that extended effort, Milton would pretend it hadn’t happened.2
WC mentions Milton because President Trump is making Milton’s mistake. Once you’ve crapped on the kitchen floor, it’s pretty hard to not notice there’s a pile of hot, stinking cat crap in the middle of said kitchen floor. In this instance, the cat crap is Trump’s affair/liaison with Stephanie Clifford, a/k/a Stormy Daniels.
Stormy’s claim of an affair and a laughably clumsy attempt to cover it up is supported by very strong evidence. Trump’s lawyer has admitted to paying Clifford $130,000 out of his own pocket to get a nondisclosure agreement.3 That nondisclosure agreement is now public information, an exhibit to Clifford’s complaint seeking to have the NDA declared void. Her theory is that is unenforceable because Trump – under the alias “David Dennison” – didn’t sign it. As a legal claim, Clifford’s lawsuit barely passes the Red Face Test. But it is probably enough to avoid getting Clifford’s lawyer, at least, into legal or ethical trouble. From President Trump’s point of view, the legal merits of Clifford’s claim are largely irrelevant. Win or lose the Clifford lawsuit, the cat crap is out there for everyone to see, smell and snicker about.
The second reason that the whole business is like one of Milton’s kitchen floor cat craps is that the stuff is a magnet. No matter how careful you try to be, too often you wind up stepping in it, getting crap on your shoe and tracking it all over the house.
Any number of people have trod in this pile of dung. Certainly Trump’s longtime attorney Michael Cohen, has it smeared all over his insole. Cohen looks like he has suborned perjury, violated campaign finance laws and engaged in grossly unethical behavior. WC can’t speak to legal ethics enforcement on the East Coast, but if Cohen had done this stuff in most West Coast states he’d already have been suspended from the practice of law. WC hopes he has a good lawyer.
The Trumpster himself, so often eager to tweet about anything and everything, has been oddly silent about l’affaire d’ Stormy Daniels. Completely silent, in fact. But if, as Cohen has implied, Trump was to reimburse Cohen for Cohen’s advance of hush money to Clifford, then it was money advanced in support of his presidential campaign and should have been reported. No surprise: it wasn’t. So some of the cat crap is already stuck on Trump’s shoes. If Trump directed Cohen to suborn Clifford’s perjury, then Trump has tracked the metaphorical cat crap all over the house.
WC thinks it is extremely unlikely that the NDA would be enforced if Trump ever attempts to do so. If Trump is sensible, he won’t even try because at this point, there’s no upside to trying. WC recognizes that it is unwise to use “sensible” and Trump in the same sentence. But if he does make the attempt the agreement is so hopelessly one-sided that a liquidated damages clause imposing $1 million per violation is unconscionable and likely entirely unenforceable.4
But more broadly, WC has long thought that nondisclosure agreements involving public figures that deal with their fitness for office should be unenforceable as a matter of public policy. Stuff that bears on their fitness for office – including extra-marital affairs – are too important to be allowed to be hidden behind paper and a bribe. If would-be public officials want to keep secrets, they should decline the opportunity to be public officials.
Otherwise, sooner or later, there will be a cat crap episode.
- “The “L” in El is for “elevated,” as in elevated train tracks. The Chicago Street station is in Chicago’s catacombs, deep underground. This is not the only gross misnomer in America’s Second City. ↩
- When WC broke up with his girlfriend, they had a custody dispute over who would get Milton. It was resolved by a mutual friend, who awarded custody to the ex-girlfriend. WC has referred to the ex-girlfriend as “the Cat Thief” ever since, even though it was likely for the best. Kitchen turd deposits weren’t Milton’s only issue. ↩
- Important practice tip for young lawyers: get the NDA written and signed before you release the information you want to keep confidential, not afterwards. ↩
- An agreement is “unconcscionable” if enforcing it would shock the conscience of the court. In most states, a liquidated damages clause that is 7.7 times greater than the consideration is going to be deemed unconscionable. Additionally, liquidated damages – an agreed upon damage amount where actual damages are hard to calculate – have to have a reasonable relation to probable actual damages. Otherwise, they are a penalty and unenforceable. ↩