Caroline Polisi is a federal and white-collar criminal defense attorney in New York, anchor at the Law & Crime network, and frequent CNN contributor as a legal analyst.
Following the “tawdry charade” of porn star Stormy Daniels‘ interview on “Jimmy Kimmel Live!”, a prominent attorney and legal analyst concludes that Daniels, referred to by her legal surname, Clifford, must have signed a nondisclosure agreement with Donald Trump.
At CNN.com, Caroline Polisi writes:
While the entire Kimmel/Clifford encounter was cringeworthy for reasons that far surpass its potential legal ramifications for Ms. Clifford (at one point, Kimmel’s aggressive questioning took such a perverse bent that Ms. Clifford asked Kimmel in disbelief, “What is wrong with you?”), the issue of the NDA was particularly precarious:
Kimmel: “Do you have a nondisclosure agreement?”
Clifford: “Do I?”
Kimmel: “You can’t say whether you have a nondisclosure agreement, but, if you didn’t have a nondisclosure agreement, you most certainly could say ‘I don’t have a nondisclosure agreement,’ yes?”
Clifford: “You’re so smart, Jimmy.” [audience applause]
Polisi calls the post-Kimmel email dashed of by Stormy’s attorney, Keith Davidson, “an attempt at damage control”. The communication stated that the porn queen “was having fun on Kimmel and being her normal playful self.”
From a purely legal vantage point, Ms. Clifford could well have violated her NDA because — let’s be honest — any reasonable person watching the interview could discern from Clifford’s comments and demeanor that she has one. In legal terms, a judge could conclude that, based on a totality of the circumstances, the interview constituted an indirect representation that such an agreement exists.
And a prohibition on acknowledgment of the existence of the NDA is likely a part of the NDA itself (stay with me), because the logical conclusion thereof, of course, is that Clifford in fact had a consensual affair with Donald Trump in 2006, as she detailed in her original 2011 interview with In Touch.
Otherwise, why have a nondisclosure agreement in the first place?
It therefore comes as no surprise that Michael Cohen, Trump’s personal lawyer, allegedly arranged for $130,000 to be paid to Ms. Clifford in the month leading up to the presidential election in exchange for her silence — such agreements are not uncommon when it comes to celebrities.
But Clifford is not remaining silent, and that presents Cohen with an interesting dilemma. What, if anything, is he going to do about it? Moving forward with a full-fledged enforcement of the agreement necessitates an acknowledgment of the NDA with Clifford. This Catch-22 highlights just one of the many problems associated with this popular contractual tool that is — more often than not — used by the more powerful party in a dispute to keep their transgressions out of the public eye.
In short, they don’t work, because they often fail to protect the powerful anyway and worse, hinder those seeking justice from moving forward with the authorities.
Polisi points to Ronan Farrow’s reporting on Harvey Weinstein, which suggests that “Ambra Battilana Gutierrez (the woman who cooperated with the NYPD in an undercover sting operation and caught Harvey Weinstein on tape admitting to her sexual assault) signed an affidavit stating that the incident never took place, as part of her nondisclosure agreement with Weinstein’s team.”
I never felt more satisfied or optimistic than when I rode the river in my youth.