An Escape Route Theory:
Invalidating Stormy's NDA
Its always fun to make suggestions to really, really good attorneys.
First of all, there needs to be a note about what MeanMesa thinks about Stormy Daniel's attorney, Mike Avenatti.
Avenatti's exposure on various interviews has revealed a truly impressive, formidable lawyer who stands "head and shoulders" above other attorneys seen recently. The man is far too much like a smoke belching locomotive roaring across the midlands to allow much "restful sleep" among his likely opponents.
Still, MeanMesa finds the case theory in the Stormy Daniels affair quite likely to remain a very challenging task -- even for an attorney of this quality. For this reason MeanMesa has, understandably, spent a few high desert spring days considering the various approaches of exactly how this might be done.
Here is a conclusion relating to a potential judicial theory.
To date the relevant events have been interpreted in what may be the wrong sequence. The admittedly banal media narrative has been focused on the hush money agreement as a contract which might be invalidated on narrow arguments of form and completeness. This may be backwards.
MeanMesa's thought is that the contract might be invalidated by its causal role as a necessary prelude serving as a foundation for a subsequent illegal act. Rather than focusing on the Daniel's NDA agreement, perhaps the focus should move to Michael Cohen's statutory exposure for violating the FEC election financing law.
Executing the NDA with Daniels, considered in this sense, would have been a "theoretically legal" act -- if it were examined as standing alone. It wasn't standing alone. The legality of the NDA contract was already entangled in Cohen's clearly premeditated intention of criminally violating election finance law on the date the Daniels NDA was [or, notably, not...] signed by the contract's parties.
MeanMesa has to presume that Cohen's scheme -- that is, all parts of the scheme including orchestrating and entering into the NDA with Daniels, compensating her and then failing to report the donation -- fulfills the requirements for a legal test, in this case, of mens rea. [Mens rea is the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. /GOOGLE ] If it can be established that all or part of the motives for creating and executing the NDA were in fact preliminary elements of the much more direct crime of making an illegal campaign donation.
Additionally, the violation of election law did not actually occur until Cohen's "political donation" was not reported subsequently following his payment to Daniels. Although a bit "thready," the reported facts remain.
1. Cohen enticed Daniels to enter into the agreement and then compensated her with the now infamous $130,000 provided from a mysteriously clouded source.
2. Cohen did this with a complete knowledge of the subsequent legal requirement of reporting the transfer as a political donation to the Trump Campaign.
3. Cohen's failure to report as legally necessary was an element of the equally "entangled" extension of his intention to silence Daniels, and was a premeditated element of all the combined parts his complete plan. Reporting the donation as required by election law would have almost certainly revealed evidence of precisely the facts he intended to hide.
This view of the NDA would establish it as a necessary part of a larger plan to violate election law. Under this shade the Daniels' NDA would be invalid.
Levels of mens rea
Under the traditional common law, the guilt or innocence of a person relied upon whether he had committed the crime (actus reus), and whether he intended to commit the crime (mens rea). However, many modern penal codes have created levels of mens rea called modes of culpability, which depend on the surrounding elements of the crime: the conduct, the circumstances, and the result, or what the Model Penal Code calls CAR (conduct, attendant circumstances, result). The definition of a crime is thus constructed using only these elements rather than the colorful language of mens rea.