“A lawsuit opens the door, and judges almost always allow for a plaintiff to have a fishing expedition,” said Robert S. Bennett, the Washington lawyer who represented Mr. Clinton in the Paula Jones case. The questions could include, “Have you paid other people money?” he said.
David A. Super, a law professor at Georgetown University, said the lawsuit Ms. Clifford filed on Tuesday centered on a limited contract law matter, but he noted that it also specifically stated that Ms. Clifford would amend her complaint in the future to add the names of people who she said participated in wrongdoing with Mr. Trump and Mr. Cohen.
He suggested that Ms. Clifford and her lawyer might be starting with a narrow argument aimed at getting the contract declared invalid, perhaps intending to broaden it later to include claims that Mr. Trump and Mr. Cohen coerced her into silence. “If that happened,” he said, “they certainly could seek to depose Trump.”
And in that case, he said, “I can certainly imagine how it might get broader. And if it did, the wide array of Trump’s sexual interactions could be addressed, just as the wide array of Clinton’s sexual interactions was addressed in the Paula Jones case deposition.”
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Getting into a public court setting, however, is a big hurdle.
“If the parties agreed to binding arbitration, they have waived their right to file a lawsuit,” said H. Christopher Bartolomucci, a law partner at Kirkland & Ellis in Washington who previously worked in the White House as associate counsel to President George W. Bush. Ms. Clifford’s signature on the contract, and acceptance of the money, could count as a clear sign of agreement.
But other legal experts were struck by the sweeping nature of the nondisclosure agreement Ms. Clifford signed, and expressed skepticism that it would hold up in court. Beyond the circumstances of the alleged sexual relationship, the agreement barred her from doing anything, even indirectly, to “publicly disparage” Mr. Trump.
“It actually presents a relatively clean issue for the court,” said Lawrence M. Noble, a former top lawyer at the Federal Election Commission who is now the general counsel for the Campaign Legal Center, a watchdog group. “What she signed amounts to a gag order, and she has rights if this agreement is not found to be valid.”
Mr. Avenatti is building his case on what he calls “sloppy” lawyering by Mr. Cohen, dating to October 2016 when Mr. Cohen negotiated the agreement for Ms. Clifford’s silence. Ms. Clifford has claimed that she met Mr. Trump at a celebrity golf tournament in 2006 and began a relationship that included sex and promises from Mr. Trump to get her on his NBC show “The Apprentice” and to give her a condominium. A close friend of hers, Keith Munyan, confirmed several of those details in an interview this week, saying he heard Mr. Trump offer her the apartment when Ms. Clifford invited him to eavesdrop on the conversation. Mr. Trump has denied the affair.
Mr. Avenatti’s argument hinges on a blank signature line by the alias used for Mr. Trump, David Dennison, on the contract. Ms. Clifford, identified as “Peggy Peterson,” and Mr. Cohen, representing the shell company he used to facilitate the payment, both signed the document. Mr. Avenatti argues that because Mr. Trump did not sign it himself, the agreement is invalid — a point Mr. Super, the Georgetown professor, basically agreed with and Mr. Noble said might have merit.
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Jonathan Ernst/Reuters
The initial contract is not confined to the commitments Ms. Clifford makes to Mr. Trump — to never speak of their affair and to relinquish any material she might have relating to him, like emails, photos and video. It also includes commitments Mr. Trump makes to her, such as a promise not to take any legal action against her for her claims.
So, Mr. Avenatti argues, Mr. Cohen is improperly acting as a stand-in for Mr. Trump as he seeks to enforce the deal, including the provision he cited in bringing the temporary restraining order.
The extent to which Mr. Cohen was acting on his own in striking the agreement with Ms. Clifford and paying her is crucial not only to Ms. Clifford’s case but also to the complaint against the Trump campaign and the Trump Organization filed with the Federal Election Commission. That complaint, brought by Common Cause, alleges that Ms. Clifford was bought off because she posed a threat to Mr. Trump’s presidential prospects, and argues that the $130,000 payment was effectively a contribution to Mr. Trump’s campaign that should have been reported to the commission. Common Cause has also filed a complaint with the Justice Department demanding an investigation.
Important factors in the case would include just how closely Mr. Cohen coordinated the payment to Ms. Clifford with Mr. Trump and whether it was intended to help the campaign avoid negative publicity.
Mr. Cohen has said that he “facilitated” the payment with his own money and was not reimbursed by Mr. Trump’s company or campaign, and that the payment was “not a campaign contribution or a campaign expenditure by anyone.” But in her suit, Ms. Clifford tries to implicate Mr. Trump in the transaction, saying the offer of money was intended to buy her silence to help “ensure he won the presidential election.”
Paul S. Ryan, the vice president for litigation and policy at Common Cause, said that assertion makes clear that the payment was connected to the campaign. “That’s a threshold legal issue, establishing that the purpose of the payment was to influence the election,” he said.
Jan Baran, a former general counsel to the Republican National Committee, said the facts so far do not support the notion that the payment to Ms. Clifford was “indisputably directly for the campaign itself.” It could have simply been a personal matter, he said, of Mr. Trump wishing to keep a secret from his wife.
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