Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York City and is a partner at Pierce Bainbridge. She frequently appears on CNN as a legal analyst. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own. View more opinion articles on CNN.
It’s not surprising that a federal judge in California threw out the porn actor Stephanie Clifford’s defamation lawsuit against President Donald Trump and ordered her to pay his legal fees. But it surely stung Clifford, who goes by Stormy Daniels, and her lawyer, Michael Avenatti, to hear team Trump hail their “total defeat.”
The case hinged on Trump’s use of the phrase “con job” in a tweet attacking Clifford’s claim that someone had threatened her to keep her quiet about her claim of an affair with Trump in 2006.
It wasn’t a strong case. Defamation claims are notoriously difficult to win, especially for public figures like Daniels. Our legal system values free speech above just about everything, encouraging robust public discourse to build (in theory) a more transparent, open and educated society.
Slinging mud at porn stars likely wasn’t what the Founding Fathers had in mind with the First Amendment, but nonetheless this is where we are. God bless America.
And in an ironic display of the blindness of justice, President Trump is protected by the same First Amendment principles undergirding the very defamation and libel laws he has sought to rewrite in order to protect himself from criticism. He may be rethinking that position after this victory.
Rest assured, Clifford and Avenatti are not going away anytime soon; Avenatti has filed multiple cases in various districts representing Clifford in connection with her alleged relationship with the President. And setbacks of a similar nature haven’t deterred the lawyer before.
The pending claims against Trump and his lawyer Michael Cohen, the President’s disgraced “fixer,” in connection with the now infamous non-disclosure agreement – colloquially called a “hush money agreement” because it was penned in the month leading up to the presidential election, allegedly in exchange for her silence – proceeds apace, as Avenatti has been quick to point out.
And while the dismissal of Clifford’s defamation claim makes it far less likely that Avenatti will get what he’s been fighting so hard for – a showdown with Donald Trump in the form of a deposition, I’ve always thought Summer Zervos has the sleeper legal case of the Trump presidency. There’s a real chance the President could be ordered to sit for a deposition in connection with that litigation.
In the larger scheme of this saga, this “defeat” is a blip on the radar screen for Clifford and Avenatti.
Stormy Daniels captured America’s heart (or at least mine) when she made her debut on the national stage on Jimmy Kimmel’s show and taught us all a thing or two about any preconceived notions we may have about women in the porn industry – don’t underestimate them. This is not the end of the road for Stormy.