Porn star raising funds for legal expenses in Trump disclosure fight

The adult-film star known as Stormy Daniels today launched an on-line fundraising appeal, which she says is intended to help cover legal fees and potential damages she might incur if she speaks publicly about an alleged affair with President Donald Trump more than a decade ago.

“I am attempting to speak honestly and openly to the American people about my relationship with now President Donald Trump, as well as the intimidation and tactics that he, together with his attorney Michael Cohen, have used to silence me,” Daniels writes on the site, using her legal name, Stephanie Clifford.

The fundraiser – hosted on CrowdJustice - was confirmed as authentic by Michael Avenatti, an attorney for Clifford. As of Wednesday afternoon, more than $26,000 has been pledged.

Trump – through spokespersons - has repeatedly denied Clifford’s allegations of an affair.

Clifford reportedly taped an interview last week with CBS News’ 60 Minutes. On Wednesday morning, Avenatti tweeted a photo of Clifford sitting across from Anderson Cooper, the CNN anchor and 60 Minutes contributor. But CBS has not yet promoted the interview or announced its plans for when it would air.

According to a contract signed by Clifford and Cohen in late October 2016 - which Clifford is now challenging in California state court - she faces “liquidated damages” of $1 million for each breach of confidentiality involving a man identified in the agreement as David Dennison, which Clifford’s suit alleges is a pseudonym for Trump. She could also be required to return the $130,000 she received from Cohen after the deal was made.

Cohen told the Washington Post last week that - if Clifford violates the deal - he has every intention of trying to collect, and he criticized her attorney for putting her at financial risk.

“I believe Mr. Avenatti’s actions and behavior has been both reckless and imprudent, as it opens Ms. Clifford to substantial monetary liability, which I intend to pursue,” Cohen told the paper.

But could Clifford be forced to pay?

In a series of interviews this week with lawyers and educators who specialize in contract law – several expressed doubts that Clifford would be ordered to come up with the sizable automatic damage amounts predetermined by the contract.

“It must be reasonable in relation to the actual damage that was likely suffered,” said Neil Wertlieb, an adjunct professor at UCLA School of Law – who noted that much of what Clifford might say about her alleged relationship with Trump is already public, after In Touch magazine recently published a lengthy 2011 interview with Clifford that it had previously shelved. Avenatti, her attorney, has also made extensive comments in recent days to ABC News and a host of others about the contract and the alleged affair.

“A million dollars for each breach? Given the news already available,” Wertlieb said, “it seems quite excessive.”

Liquidated damage clauses are intended to set a fixed sum in circumstances where it would be difficult to prove actual damages if one party to a contract fails to live up to its terms. But according to Michael Willemin, a partner at Wigdor, LLC in New York, such provisions can come under judicial scrutiny if they are deemed to be principally punitive.

“Generally speaking, courts do not like provisions in contracts that are designed simply to punish the person who is engaged in some wrong-doing,” Willemin said, “So if a court or an arbitrator determines that this liquidated damages provision was totally disconnected with any understanding of what might happen with a breach, it is conceivable they would throw it aside.”

In the event that Clifford does speak publicly - on CBS or elsewhere - Cohen or Trump might act quickly in an attempt to enforce the damages provision in private arbitration. But now that Clifford is challenging the validity of the contract, legal experts say, she has little incentive to pay an arbitration award without a court fight. And that might carry another set of risks for the president and Cohen, his personal lawyer.

“Their ability to collect liquidated damages is only as good as their ability to enforce it,” explained Mark Gergen, a professor at the University of California, Berkeley School of Law. “And any effort to get damages for a breach of the agreement could really expose [Trump and Cohen] to some very embarrassing discovery and cross-examination.”

Cohen’s payment of $130,000 to Clifford less than two weeks before the 2016 election is also raising questions about potential violations of federal election law (Cohen says it was his money and that he was not reimbursed by the Trump campaign or the Trump Organization).

With so much at stake - Cohen and Trump ought to tread carefully in the Clifford matter, said Georgetown University law professor, David Super.

“I think that there is going to be some embarrassment here that they can’t avoid, and I think their strategy needs to be to accept the embarrassment and try to avoid any more serious legal problems for themselves,” Super said. “Obviously anything they say here has the potential for worsening their position on the campaign finance matter.”