Stormy Daniels’ ingenious settlement offer to Trump

Daniels makes Trump an offer he can't refuse, but has to.

POMPANO BEACH, FL - MARCH 09:   The actress Stephanie Clifford, who uses the stage name Stormy Daniels, arrives to perform at the Solid Gold Fort Lauderdale strip club on March 9, 2018 in Pompano Beach, Florida. (CREDIT: Joe Raedle/Getty Images)
POMPANO BEACH, FL - MARCH 09: The actress Stephanie Clifford, who uses the stage name Stormy Daniels, arrives to perform at the Solid Gold Fort Lauderdale strip club on March 9, 2018 in Pompano Beach, Florida. (CREDIT: Joe Raedle/Getty Images)

The attorney representing adult film star Stormy Daniels, Michael Avenatti, sent a settlement offer on Monday to the President of the United States. Avenatti said that Daniels would return $130,000 to Trump — the amount she was reportedly paid by Trump’s attorney Michael Cohen — in exchange for being formally released from the non-disclosure agreement she signed in October 2016. The offer, according to Avenatti’s letter, is only valid until Friday, March 16.

Daniels made the October 2016 non-disclosure agreement public in a suit she filed last week in California. In that suit, Daniels argues that the agreement is invalid because Trump never signed it, among other reasons.

The settlement offer, and the decision to disclose it to several media outlets, is highly unusual. Normally settlements offers are made privately and aim to avoid further public litigation of the issue. But this settlement offer is public, and its purpose is to allow the dispute — Daniels said she had a sexual relationship with Trump, but Trump denies it — to be litigated in the court of public opinion.

It is nearly impossible to imagine that Trump would accept this offer. So what is Avenatti thinking?

Avenatti is a very successful attorney who won a $454 million medical fraud verdict in 2017, the largest single judgment in California last year. He is not proposing this settlement without a plan. A closer examination reveals the letter is a savvy move that puts Trump in an extremely difficult position.

The settlement offer makes Trump effectively reaffirm the hush money agreement

By offering to return the money, Daniels puts Trump in the position of either accepting or reaffirming his desire to pay Daniels six figures to stay quiet. The only thing Trump has to agree to is to let Daniels talk. If, in fact, he did not have a sexual relationship with Daniels, keeping her quiet would not likely be worth $130,000. In rejecting the offer, Trump looks like he has something to hide — and perhaps he does.

The settlement offer suggests that Daniels has texts, photos, and video documenting her relationship with Trump

As part of the settlement, Trump would have to agree to let Daniels release “text messages, photos and/or videos” she may have in her possession. The initial non-disclosure agreement required Daniels to deliver those materials to Trump. She now argues that the agreement was invalid. But by mentioning these materials in the settlement agreement, she strongly suggests they exist and could be released at any time. That disclosure, of course, makes it far less likely that Trump will accept that offer — but that could be the point.

The settlement offer breaks down the fiction that the agreement did not involve Trump

The settlement offer also requires Trump to acknowledge that he was a party to the original agreement. Although the $130,000 was paid to Daniels through a shell company set up by Trump’s attorney, Daniels is offering to repay Trump himself. This is based on the belief that Trump was the real source of these funds. The letter also requires, as a condition of the settlement, that it be signed personally by Trump.

The settlement offer confirms that Daniels was interviewed by 60 Minutes and that Trump may be seeking to block the broadcast

The settlement, for the first time, officially confirms that Daniels has taped an interview with Anderson Cooper for 60 Minutes. Avenatti previously tweeted a photo of himself with Daniels and Cooper, but did not specifically disclose that there was an interview.

The letter specifically refers to Daniels’ “recent interview with Anderson Cooper of 60 Minutes.” It also requires Trump and his representatives to agree to “not take any action, legal or otherwise, aimed at preventing” the interview from “airing publicly.” This may refer to a BuzzFeed report that Trump’s attorney’s were considering taking preemptive legal action to block the interview. In any event, the inclusion of this language will likely increase interest in the interview.

The settlement strengthens Daniels’ contention that this is ‘not about the money’

In her lawsuit, Daniels does not ask for money — just a declaratory judgment allowing her to speak without fear of legal repercussions. Daniels and her attorney have insisted that their actions are not about money.

The settlement offer gives Daniels a powerful talking point to bolster this contention. Not only is their lawsuit not about money, but they have also offered to return the money that Daniels already received. Daniels will likely be able to use this talking point even without actually having to return the money.