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Judge James Otero has dismissed one of adult film star Stormy Daniels’ defamation lawsuits pending in federal court in the Central District of California.
Daniels alleged that she had a sexual encounter with Trump in 2006, which the president denies. Five years later, Daniels claimed an unknown man attempted to threaten her to force her silence about it. This April, her team had a forensic artist create a sketch of this man, which was released to the public.
President Donald Trump weighed in on the sketch by tweeting: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”
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Daniels then sued Trump, arguing she was defamed by the tweet; the case has now been dismissed. However, Daniels still has a separate lawsuit pending in federal court in California. That case involves “the payment of $130,000 by Trump and Michael Cohen in violation of campaign finance law.”
But Otero’s order dismissing this defamation lawsuit means Daniels’ remaining lawsuit is likely to suffer the same fate.
That case against Trump and his former lawyer Michael Cohen contains two claims. The first is for “declaratory relief.” Specifically, Daniels is asking the court to declare that the Nondisclosure Agreement was never formed, because Trump never signed the agreement, and he didn’t give any consideration under the contract. Consideration is a legal concept meaning payment, or some other bargained-for legal detriment.
It’s hard to say what remains of this NDA today. Daniels has largely told the story that was covered under the NDA. In addition, Cohen offered in September to “put an end” to the NDA with Daniels. It’s possible the court could conclude there’s nothing left to “declare.”
The second cause of action contained in the remaining case is another defamation claim. In February, Cohen issued a public statement, stating, “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage.” Daniels alleges that Cohen “meant to convey that Ms. Clifford (her real name) is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is ‘something (that) isn’t true.'”
If the first “con job” defamation case against Trump was dismissed, this second “isn’t true” claim against Cohen will likely fail.
A court could conclude that Cohen’s statement was “rhetorical hyperbole” — the same concept Otero cited in dismissing the “con job” case. It could conclude this was merely a constitutionally protected opinion. California courts have held that calling someone a “liar” or “dishonest” is not always actionable defamation, particularly in the political context.
Even if Cohen’s statement that something “isn’t true” is construed as calling Daniels a liar, Cohen could defend on the facts. Daniels did put out prior statements about the tryst that she now admits were false.
Cohen might also argue that even if his statement implied Daniels is a source of untrue statements, this statement would not be false. The Cohen argument would be that Daniels has admitted to supplying untrue statements in the past, so this cannot be a defamatory statement.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.