Stormy and Old Bone Spur: Will 60 Minutes Fold Again?

In I995, Mike Wallace scored a blockbuster, "front page" interview with a scientist named Jeffrey Wigand, who had been fired from a tobacco company. On camera, Wigand told of secret research indicating that the cigarette companies had regularly lied to the government and the public about the health hazards of cigarette smoking.

Dynamite!  A Pulitzer for sure, right?  Well, no. Wigand had signed a "Do Not Disclose" agreement as part of his separation package from his former employer, and the CBS legal department feared that, having induced Wigand to breach his contract, the broadcaster might be subject to an enormous damage award. When threatened with a lawsuit, CBS flinched, and after much internal hand-wringing, left the scientist's taped revelations on the cutting room floor. Instead, it broadcast a ho-hum, vastly diluted 60 Minutes segment about smoking and health that attracted no more attention than it deserved, which was very little.

It was only after The Wall Street Journal published the substance of Wigand's deposition testimony in a Mississippi lawsuit, that 60 Minutes decided to broadcast its original, now-stale, Wigand interview.

Here we go again? Trump lawyer Michael Cohen says he paid porn star Stormy Daniels $130,000 for her written promise to keep quiet about her alleged affair with Donald Trump. The "Hush Agreement" stipulates a One Million Dollar liquidated damage penalty for each breach, and Cohen now alleges there are at least twenty breaches so far. President Trump, though not named in the agreement beyond the initials "D.D," did not sign it, but it is clearly about him and he has filed court papers saying he supports enforcement of the agreement's terms.  

But Stormy and her aggressive lawyer Michael Avenatti have nevertheless submitted to a "tell-all" interview with Anderson Cooper, which 60 Minutes promises to air on March 25. The marketing hype is up there with Michael Wolff's Fire and Fury.

If a court ultimately says the "Hush" agreement is valid, is CBS on the hook if it goes forward with the March 25 broadcast?

I suggest the answer is "No," for a number of reasons.

A court will not enforce "inducement liability" where to do so violates public policy. And it would be a clear violation of public policy to enforce an agreement that bars reporting a crime. While having adulterous sex may not be a crime where it occurred, the $130,000 hush payment may be: If the payment were made by Cohen without recompense from Trump, it may be a political contribution that violated campaign laws or at least an ethical violation.  And if Trump did find a way to repay Cohen, then Trump may have violated campaign laws by his failure to report the expenditure.

The determination of liability for the tort claim of inducing a breach of contract involves a balancing test: a court would need to compare the public's interest in the matter versus the economic harm to the injured party. Does the electorate's interest in learning facts about the integrity and morality of the President of the United States outweigh his interest in keeping secret an alleged adulterous affair?

And of course, First Amendment considerations are woven throughout the fabric of the court's consideration. Assuming CBS has not offered money for the interview, or promised anything of value, (like indemnification), there is a strong case to be made on policy grounds to immunize CBS's right to publish.

The clincher, I suggest, is not so much a determination of these "nice" questions of law. It’s the overwhelming detriment to the president of actually proceeding with such a lawsuit against CBS in open court. For one thing, Trump would have to prove what actual damages he had incurred from a publication of claims that he was a serial adulterer. His damages claim obviously consists of an asserted injury to his reputation. 

But the courts have definitively ruled that in suits where the alleged harm is a claimed injury to reputation, the Times v Sullivan libel strictures apply. That means to win such a lawsuit, Trump would bear the heavy burden of proving, by clear and convincing evidence, that CBS knew Stormy's statements were false, or that CBS had substantial suspicions they were false, and nevertheless published with a reckless disregard of whether her story was true or not.  

Moreover, CBS would be free to show that on the subject of Trump's sexual infidelity, the president's reputation is already in such tatters that nothing Daniels says could harm him further. To prove that, CBS would be free to parade before the jury, in open court, all the public reports, including Trump's own statements, concerning his reputation for matrimonial infidelity.

 As against Daniels directly, Trump's only shot is the remote possibility he can get an injunction against her speaking about him, i.e., a prior restraint on speaking about a matter of public importance involving the president. That horse may have already left the barn. Absent such an injunction against Daniels speaking, Trump would be left with no more than a damages claim.

But not only has Daniels so far ignored the "hush" promise, I suggest she will continue to ignore it because Trump cannot prove any damages: in order to win the stipulated one-million-dollar liquidated damage amount he would need to prove that sum bears some reasonable relationship to his actual injury. And that puts him back in the reputation trap.

Conclusions: 

I. CBS won't blink. The show will go on. I suspect the network would love to be sued, but it won't happen.

And,

II. The California litigation brought by Cohen/Trump against Daniels is functionally unwinnable. It is just bluster and if Trump doesn't know it, his lawyers do. The longer this drags on, the more the President will be distracted and disgraced. And the longer the case goes on, the greater the risk of much worse stuff coming out re other hush money payments, other dalliances, etc.

The winner, by TKO in round four, is Stormy Daniels!