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T. Greg Doucette Profile picture
@greg_doucette
Apr 6, 2018 • 60 tweets • 21 min read • Read on X
While this certainly could be the bombshell it seems to be, I'm not convinced yet

The law has long held that clients don't need to be aware of settlement details for them to be binding, if parameters on an attorney's settlement authority were hashed out ahead of time
Say you're in a car accident, and you hire an attorney. Before the attorney sends a demand for $$$ to the other side, you tell him/her "I'll take anything above $10K."
If the other side offers $10,001 and the attorney accepts it, he/she had no obligation to run it by you first in order for it to be binding on you
And if he/she *should* have run it by you first, your recourse is to sue the attorney for malpractice. The other side still gets the benefit of the negotiated-for contract.
In the Trump-Daniels case, it wouldn't surprise me if something similar happened here. A hypothetical "make this go away for anything under a quarter mil" would've been adequate settlement authority for Cohen
For the record I think the agreement should be voided as against public policy. But a bargain was struck and Daniels accepted the money so I doubt it will be. And I don't think Trump denying knowledge of the payment means much.
The attorney has that obligation, but the contract wouldn't be voided if he didn't. Instead there'd be a cause of action against Cohen for malpractice

Yeah the "not smart" factor of the Papaya POTUS and his legal team has long been a monkey wrench in these analyses lol

If a "material" term of the contract is violated (the payout or otherwise), then the aggrieved party could sue for breach

But if the negotiated terms were within range of the attorney's settlement authority from the client, the client is bound

The biggest hurdle against Daniels is that she accepted the money. For all of the other details, many (most?) courts will look skeptically at her request precisely b/c she deposited the chrck

@bentwhee
#EvergreenTweet

Whether Trump could be punished by the FEC would be a separate issue from whether Daniels was bound by the non-disclosure agreement though

Nah. So long as the payment is made, the "by who?" doesn't matter as far as the contract's enforceability goes

It seems likely but not enough so that I'd stake my life on it

That's not a logical extension lol. Winning the lottery is a totally separate act without any relation to the bargained-for exchange.

Better example is me contracting with you to buy your house. The house is mine if I pay, or my parents, or a bank, etc

Already covered this further up the thread, sure he could've

I wouldn't call it "compelling" per se, but I agree with the First Restatement approach that contracting to silence a potential whistleblower should be against public policy

But if a court took that approach, Daniels would also have to return the money IMO

@StarkContrasted
I totally agree the other angles alleged – lack of signature, use of an alias, source of funds – isn't enough to invalid when performance (the $$$) was made and accepted

@StarkContrasted
When one of the contracting parties is a political aspirant? I'd say so

Would it be different if the person was already in office?

What illegal service was contracted for?

That wasn't part of the contract though. The bargained-for exchange was Daniels got $$$, Trump got silence. Neither of those is illegal

If laws were then broken fulfilling the terms of an otherwise-legal agreement, that just creates new problems for the respective parties. It doesn't invalidate the agreement.

@bentwhee
If I contract with you to buy your house, and I rob a bank to come up with the money, you still have to give me the title to your house. I'll just be living in jail.

@bentwhee
The principles span across different areas of law. If you hire an attorney to negotiate the price of a house purchase, and tell him "any price below $250K is fine," he can bind you with a purchase contract if the price is within that scope

Discussing the "bombshell" that Trump said he didn't know about the hush money paid to the porn star he boinked

I'd actually like to know the answer to this question. I assume no

Again, how?

A state crime, yes. But *criminal* adultery laws have been unconstitutional for awhile, so that wouldn't matter here

In practice, she'd get sued and have to spend $$$$$ defending. But the Plaintiff would have to prove the leak was from her and not a hacker.

A statement made to the press is going to be one piece of evidence, among others, that a court would look at

Its weight would be dwarfed by any affidavit signed by Cohen or Trump to the contrary filed as part of the suit

I'd imagine it was more specific as to the particular chick, but yes that's what I was getting at. Very common with executives to lay out boundaries to their attorneys and then let them handle it

Assuming Cohen was acting as his attorney (regardless of subsequent statements to the press), yes

My recollection is that contracts are rarely voided for lack of consideration anymore. In the scenario you described, the remedy would be to sue for specific performance for whatever assurances / releases / etc weren't done

Basically. The other aspects of the case will impact him, but the may-have-committed-malpractice part wont

Anything Trump or Cohen argues in the media is functionally irrelevant. The question will be what they argue in filed affidavits and sworn testimony.

Not when an attorney is entering into the agreement on the client's behalf. The case law is voluminous and fairly well uniform.

I've tried to undo agreements with this same argument, it simply doesn't work

"Actual authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him." Restatement (Second) of Agency § 1 (1958)

Actual authority is express ("do this") or implied, and implied authority are those powers "incidental and necessary" to carry out express authority

Good law review article on implied authority, with cites from around the country, here: law.ua.edu/pubs/jlp_files…

@fnurt
Other route is apparent authority, which looks only at whether or not the third party (Daniels) believed the agent had authority to act. Since she accepted the money, and supposedly just now found out re signatures, she'd lose on this one too

@fnurt
Example: Robertson v Alling, 237 Az 345 (Ariz 2015)

"Nothing requires clients to separately assent in writing to a written agreement brokered by their attorney..."

@fnurt
"...Our courts have long recognized that attorneys can bind clients who have cloaked them with apparent authority to act on their behalf."

@fnurt
(Arizona was one of 3 jurisdictions the contract would be governed under, at Trump's selection)

@fnurt
This is simply not correct. If a client authorizes an attorney to do something, and the attorney does so within the scope of that authorization, there's no requirement for the client to know the details or sign the document.

And a cause of action for malpractice over an attorney's lack of authority to enter into the agreement would belong to the client (Trump), not the third party (Daniels)

@bk4uk
For purposes here they're the same. A Power of Attorney is just a written document that spells out the actual authority of the agent to bind the principal

Not necessarily. I quoted a recent Arizona Supreme Court case a little back in the thread, check that out

There'd probably need to be slightly more detail (which b*tch? "Take care of" how?) but yes

Excerpts from the Arizona Supreme Court case I mentioned mid-thread, courtesy of @fastcase (who I ❤️ but desperately needs a new iOS app)

(Remember: per the contract, Trump gets to pick whether it is governed by Arizona, California, or Nevada law)
It wouldn't void the contract, it'd just mean Cohen could be prosecuted for violating campaign laws

If I contract with you to buy your house, you don't get to back out because I robbed a bank for the money :)

Trump could seek to have it voided, or he could ratify it. But it wouldn't be a basis for Daniels to have it voided, because from her vantage point Cohen had apparent authority and the money was paid

Generally no, it's monetary only. It gets a little dicier where a party preemptively moves to enjoin the party from disclosing, the court agrees, and the party does it anyway; at that point they're potentially in contempt of court

It's certainly voidable in practice, because if Trump agreed to the terms he just wouldn't bother to assert lack of authority to void it

And the case law is clear that a client can avoid liability for a contract their attorney had no authority to enter

But wouldn't the extent of the attorney's actual authority be confidential under attorney-client privilege, unless the client (Trump) chose to disclose? Daniels doesn't get access to that info

I'm saying it wouldn't even get that far b/c Daniels loses on apparent authority grounds. If a court somehow let her proceed, the only evidence she'd have is statements to media that could be rebutted by affidavit. That doesn't then get her privileged info
But what statements has *Trump* made that would constitute a waiver?

A court's not going to hold he waived privilege by saying to the media he didn't know about a payment, when case law says he didn't have to know about the payment in the first place

Privilege belongs to the client, not the lawyer

Yes, duress is a valid defense to enforcement and often leads to an evidentiary hearing

But privileged info, disclosed without authority, wouldn't be admissible in the suit over the contract (on top of Cohen being disciplined)

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More from @greg_doucette

T. Greg Doucette Profile picture
Sep 29, 2018
You would be
Absolutely

Had Dr. Ford given the same testimony in the same manner in court, you'd have a conviction. Prosecutors absolutely care about numbers; this would be an easy win, even without Kavanaugh's testimony.

Read 19 tweets
T. Greg Doucette Profile picture
Sep 19, 2018
Without diving into this particular case, this type of attorney letter is a stall tactic when you think you're going to lose on the merits
The latter. Assume this were a run-of-the-mill Title VII case; typically Plaintiff's attorneys strike at the point they have maximum leverage, which Ford had. You delay when you hope some external event will turn up useful info instead

She may very well be telling the truth. But the FBI is not going to investigate, because even if we assume she's telling the 100% truth, there's no *federal* crime that took place. It's a dodge.

Read 200 tweets
T. Greg Doucette Profile picture
Sep 6, 2018
T.'s Courtroom Chronicles, #90618

The Case Where Everyone Loses Edition
Some folks were wondering what I was talking about when I tweeted this out yesterday

It was referring to a case where I'd be meeting with a client today

This one:
Read 84 tweets
T. Greg Doucette Profile picture
Sep 1, 2018
"Love of police brutality is strongly bipartisan. This is what happens when one party loves 'law & order' and the other one loves public sector unions."
-Me
Soooo you didn't read the linked story

K

Dems have always loved police brutality just as assuredly as Reps. Particularly white liberals who rely on police to keep the poors away.

And writing laws to cover up brutality? It's all aboard

twitter.com/i/moments/7871…
Read 24 tweets
T. Greg Doucette Profile picture
Aug 28, 2018
In today's criminal justice news, the Balch Springs PD officer who summarily executed unarmed 15yo black boy #JordanEdwards – and then lied about it to cover it up – has been convicted of murder

Edwards was killed as he and friends peacefully drove away from a lawful house party
Our original thread on the extrajudicial summary execution without due process of Jordan Edwards is here, including the nonsensical police statement released after the shooting

The thread on the indictment is here:
Read 14 tweets
T. Greg Doucette Profile picture
Aug 22, 2018
No. A person being pardoned can refuse it, rendering it ineffective. That was the precise issue in Burdick v US, where Burdick refused to accept the pardon so he couldn't be compelled to testify
There is no exception for pardoning his own crime, that's a myth. He can absolutely pardon co-conspirators

Impeach and remove faster. There's nothing saying they couldn't do all of that in the span of minutes; the procedural requirements for an impeachment trial are a political question courts can't adjudicate. See Nixon v US (*not* US v Nixon)

Read 69 tweets

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