An Unfortunate State of Affairs: Why This Latest Lawsuit Matters
Last Tuesday, adult film actress Stephanie Clifford filed suit against President Trump in the Los Angeles Superior Court, alleging that a nondisclosure contract from October of 2016 is invalid and therefore unenforceable. Clifford’s intent is “declaratory relief,” which would allow her to share details of a purported affair with Trump ten years ago, about which she was paid $130,000 to not share information.
It may sound scandalous, but this is not Donald Trump’s first lawsuit.
In fact, it’s one of more than four thousand in which the famously litigious businessman has been involved in his lifetime, ranging from racial discrimination to sexual harassment allegations. Since taking office, the President has already been sued by the American Civil Liberties Union over his decision to ban transgender people from serving in the U.S. military; Democratic members of Congress, alongside the state of Maryland and Washington D.C., because of his continued interests in business dealings in violation of the Emoluments Clause; the city of San Francisco, for his threats to withhold federal funding from so-called sanctuary cities; and individuals, civil rights organizations, and states over his executive orders on immigration. Those are just four of the hundreds of cases against Trump which have accumulated in just over one year, some of which could have substantive and long-lasting juridical implications.
The Clifford case, however, is different. Ms. Clifford is not a threat to national security per se, but her suit against President Trump, and indeed the entire episode surrounding the affair and subsequent actions, bespeaks a troubling trend of behavior for the president: namely, an unwillingness to take responsibility for his own behavior.
Trump is certainly not unique in this regard; in fact, recent history provides ample evidence of such cases, in which the president has attempted to evade legal consequences for personal misbehavior. Two important precedents were set in this regard, with Supreme Court rulings during the Nixon and Clinton administrations. The first, Nixon v. Fitzgerald, determined that the president is immune from civil lawsuits in federal court related to his official actions in the position of president. Fifteen years later, Clinton v. Jones reaffirmed this ruling, clarifying that the aforementioned immunity doesn’t apply to unofficial conduct. The Clifford lawsuit — neither conducted in a federal court nor related to Trump’s behavior in an official capacity — is therefore legally permissible, despite arguments otherwise by the president’s representatives. This raises a host of potential questions around the affair, not least of which concerns the morally questionable decision to offer a monetary settlement in return for Clifford’s silence.
It’s no small coincidence that the nondisclosure agreement was signed in November 2016, nor was this the only accusation taking place behind the scenes leading up to the election. Former Playboy model Karen McDougal fell victim to the “catch and kill” practice of the tabloid industry in November 2016, in which the National Enquirer purchased the rights to her story of an affair with Donald Trump, but never published it, likely because the owner of the media company which publishes National Enquirer is a friend of the president. The two contracts with McDougal and Clifford were technically unrelated, but the troubling pattern is clear: a woman claims to have had a relationship with Trump, he denies the claims and publicly defames her character, and she is silenced with a payment and a signature.
This is not exactly role model behavior, but there’s also the more unsavory question whether Trump’s new position as leader of the free world holds him to a higher standard of responsibility. It appears as though the president has taken minor steps to distance himself from such proceedings, by delivering statements through spokespeople and employing teams of attorneys, including lawyer Mark Cohen, to coordinate payments and agreements. Despite the increased visibility of the office, however, nothing has been done to make amends for the incidents, or even acknowledge the women’s claims as worthy of sincere response. In addition, recent disclosures have revealed potential links between Trump’s campaign and the settlement payments, adding another dimension to the web of litigation and scandals which is slowly entangling the president’s personal life.
For an already embattled administration, this latest round of litigations could be the storm that sinks the ship.
