Katz, Marshall & Banks partner Debra Katz was quoted in a New York Times article, “Could Trump’s Missing Signature Force Him to Testify?”
One of the many consequences of Michael Cohen’s guilty plea last week may be that he no longer can invoke his Fifth Amendment right against self-incrimination. Prior to Cohen’s plea, a court had paused a civil suit filed by Michael Avenatti, the attorney for Stephanie Clifford, also known as Stormy Daniels. The civil case sought to invalidate the nondisclosure agreement (NDA) that prevented Ms. Clifford from speaking publicly about her alleged affair with President Donald Trump. In deciding to stay the civil suit, the judge had cited the fact that Cohen could avoid testimony in the suit by invoking his Fifth Amendment rights. Cohen’s plea could now potentially pave the way for the judge to lift the stay and allow the case to move forward.
If that happens, Trump’s missing signature on the NDA that Clifford signed following their alleged rendezvous may provide an opening for Avenatti to depose Trump regarding his knowledge of the deal.
“This is exactly the kind of thing that Avenatti can take a deposition about,” opined Ms. Katz. “Because there is no criminal case pending now and Cohen is out of jeopardy, it would be appropriate for the court to lift the stay and let the case go forward.”
In addition to the suit to invalidate the NDA, Avenatti filed a separate lawsuit accusing Cohen and Cliffords’s former lawyer, Keith Davidson, of colluding to silence Clifford. In that case, too, Trump’s knowledge of and agreement to the deal to pay Clifford in exchange for an NDA could be the basis for a deposition of the President.
Issues such as executive privilege and other pending and potential cases involving Cohen could complicate any potential Trump deposition. Trump could ultimately avoid a deposition by simply ceasing to enforce the agreement, but he has given no indication that he intends pursue that option.
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