According to the NYT, Trump is suing Stormy Daniels for $20 million, for 20 supposed violations of the unsigned settlement agreement in an attempt to rely on the secret arbitrator’s restraining order.
"President Trump, weighing in directly on the Stephanie Clifford case for the first time, claimed in court papers filed by his lawyers on Friday that the porn actress who alleges she had an affair with him violated a confidentiality agreement at least 20 times, exposing her to damages of at least $20 million.
"President Trump’s lawyers filed two motions on Friday in United States District Court in California in a public legal fight that Ms. Clifford, whose stage name is Stormy Daniels, started last week. That’s when she sued to get out of an agreement that she had struck to be paid $130,000 to stay silent about an affair she alleges to have had with Mr. Trump starting in 2006.
“Mr. Trump formally joined his legal team’s response to Ms. Clifford’s suit in a motion, filed Friday, to move the case from state court in Los Angeles, where Ms. Clifford filed her claim, to federal court.”
A plaintiff in state court has the right to “remove” the whole case to federal court if there is a “federal question” involved. That has been the law for a very long time. His basis is the Federal Arbitration Act; federal courts are more likely (at first blush) to force the case back into arbitration. Avenatti can petition for remand to the state court. He may or may not. I would think carefully before I did for two reasons. First, I would always rather be in federal court, not state court. If the District Court hands down a decision Trump or Stormy don’t like, Trump will find himself in the Ninth Circuit for the appeal, where he is fabulously popular among the circuit judges.
A big problem is that I don’t believe the liquidated damages clause, setting damages at $1 million per occurrence is enforceable because it is punitive on its face. The court will apply the same state law to that issue as the Californiah case. The court must also hold that the clause is reasonable because the damages under the alleged probably-not-a-contract would be difficult to determine.
A second big problem for Trump is that federal courts are limited to adjudication of “cases and controversies” that do not involve political opinions. The plaintiff is the President of the United States. The court is being asked to eliminate a political problem for Trump in the guise of a bad faith contract action. Whatever damages Trump has suffered cannot be separated from his office. What is the judge supposed to say? That Trump will suffer $x because of the damage to his chances to win reelection? The federal court is much more receptive to that argument. The judge is not going to blunder into presidential politics and award $20 million from a private citizen with information to tell relevant to his fitness for office.
By personally inserting himself, Trump is rendering himself liable to discovery in federal court if the case is removed, but he loses his immediate motion to dismiss the case on the grounds that it belongs only in arbitration. I think he would lose that motion; federal judges don’t like to dismiss cases this early.
The Russian saying is that “stupid is forever.”