Jurisprudence

Was Former Playmate Karen McDougal’s Old Lawyer Working for Her or for Donald Trump?

Karen McDougal poses with a Shelby Series Mustang at the Playboy Mansion in Beverly Hills, California on May 28, 1998.
Karen McDougal poses with a Shelby series Mustang at the Playboy Mansion in Beverly Hills, California on May 28, 1998.
Photo illustration by Slate. Photo by FSP/RC/Getty Images.

Karen McDougal filed a lawsuit in the Los Angeles County Superior Court on Tuesday against the parent corporation of the National Enquirer, seeking to invalidate a nondisclosure agreement that would prevent the 1998 Playboy Playmate of the Year from discussing an alleged affair with Donald Trump. McDougal joins Stephanie Clifford in the ranks of women seeking to get out of poorly constructed contracts hashed together in the waning days of the 2016 campaign and meant to protect candidate Trump, but a key part of her story is different. Instead of Trump’s personal attorney trying to silence her with a contract put together in possible violation of Federal Election Commission rules, it’s the media company American Media Inc., which bought her “life rights” with the intention of killing her story. One potentially critical common thread, though, is that the two women shared an attorney: Keith Davidson.

Indeed, the most disturbing parts of McDougal’s lawsuit are those involving her and Davidson. McDougal’s suit depicts Davidson as a lawyer with compromised loyalties, and she has some evidence to back it up. She says that she didn’t know that Davidson was negotiating similar deals, didn’t know that Davidson was allegedly communicating with Trump’s personal attorney Michael Cohen about her own deal, and relied on Davidson’s interpretation of the agreement, which she claims didn’t accurately reflect what the parties had negotiated in their discussions. Not long after the deal between McDougal and American Media Inc. was signed, Davidson emailed Cohen to say “Michael, please give me a call at your convenience,” according to the New York Times. The Times also reported that a person familiar with that conversation said Davidson told Cohen the deal was done. Cohen and Trump were not a party to McDougal’s agreement in any way, so Davidson’s discussion with Cohen raises troubling questions, most obviously: Why was his client unaware of it? Davidson may have lost a client in McDougal, but he still has a fan in his ostensible adversary Cohen, who has publicly vouched for Davidson as a “tireless advocate for his clients” and “professional, ethical and a true gentleman.” It’s perhaps noteworthy that Davidson was suspended by the California State Bar in 2010 for three months over a number of blown filing deadlines and missed court appearances.

Davidson responded to news of the lawsuit with a terse statement to the Times saying that he had “fulfilled his obligations and zealously advocated for Ms. McDougal to accomplish her stated goals at that time.” He cited attorney-client privilege as barring him from discussing the matter further.

It’s not just the shady relationship between Davidson and Cohen that potentially jeopardizes this deal. In seeking to invalidate her contract, McDougal makes three varyingly persuasive arguments. She first claims there was fraud in the contract’s execution because she was misinformed as to key elements. Specifically, she says she didn’t understand paragraph one of the Aug. 5, 2016, agreement, which purportedly grants American Media Inc. the right to use McDougal’s name, likeness, and image in connection with columns that would appear in Star magazine and Radar Online but doesn’t require America Media Inc. to publish any of them. McDougal says that she was promised that these columns would be published and that this is how Davidson represented the contract to her.

Sure enough, only a small handful of columns ran under McDougal’s name. This begs the question of why this paragraph exists at all if it only provides America Media Inc. an option. The clause, in fact, is written in a way that it appears to be offering McDougal some benefit, when all it does is give America Media Inc. that option. It simultaneously uses binding-sounding language such as “AMI shall provide to McDougal … a so-called ghost-writer … ” and “McDougal shall have the absolute right to approve any image … ” (bolding mine). It’s not entirely surprising that McDougal thought she was getting a career boost, and it was Davidson’s duty to explain the agreement (which, to be fair, the evidence may ultimately show he did). Obviously, other parts of the contract do bind American Media Inc., which makes this paragraph feel conspicuously incongruous.

Likely relevant to McDougal’s claims would be any communications between McDougal and Davidson. American Media Inc. may argue that the dispute here isn’t between McDougal and American Media Inc. but rather McDougal and Davidson. McDougal is only seeking an injunction with respect to her agreement with American Media Inc., not damages with respect to her allegations against Davidson. But assuming fraud can be shown, the question of whose fraud may be relevant, and Davidson may be deemed a necessary party to sort through that question. From McDougal’s vantage, if Davidson and American Media Inc. were working in concert—and particularly if Trump or his legal team were involved in any way—it shouldn’t matter that Davidson isn’t a party to the lawsuit—she only wants to invalidate the agreement with American Media Inc. Whether she’s saving a separate lawsuit or bar complaint for Davidson remains to be seen.

The next claim echoes another aspect of the Clifford affair, with McDougal arguing that the contract is invalid inasmuch as its purpose was to make an illegal in-kind donation to the Trump campaign in violation of 52 U.S. Code 30118(a). Contracts formed for an illegal purpose are void by definition. Some evidence does appear to indicate that the deal was being done to benefit Trump, perhaps even on behalf of Michael Cohen and the Trump campaign. Jeffrey Toobin’s New Yorker article from July includes this telling exchange with American Media Inc. owner David Pecker:

“Once she’s part of the company, then on the outside she can’t be bashing Trump and American Media.”

I pointed out that bashing Trump was not the same as bashing American Media.

“To me it is,” Pecker replied. “The guy’s a personal friend of mine.”

If Pecker views American Media Inc.’s interests as indistinguishable from Trump’s, and to the extent Trump’s interest at the time was to protect his campaign from stories like McDougal’s, that information was relevant to McDougal. The lawsuit claims that McDougal only learned that Davidson phoned Cohen to report that the agreement had been signed by reading the Feb.
18 New York Times article
. An agreement made months prior to the end of the presidential campaign to remain silent about a relationship that took place a decade earlier strongly suggests an intent to benefit the campaign, especially in light of Clifford’s agreement, made more or less simultaneously and on eerily similar facts. What muddies this argument somewhat is that the agreement contained multiple provisions, such as those relating to McDougal’s career, some aspects of which have been performed—for instance, McDougal did appear on the cover of an American Media Inc. publication as promised in the agreement.

Finally, the lawsuit seeks to invalidate the contract on public policy grounds, arguing that it coerces the silence of an unsophisticated party who is nevertheless a much-discussed figure in a newsworthy debate concerning the character of a public elected official. Like Clifford’s situation, we already know the broad parameters of McDougal’s Trump story. Depriving her of the right to talk about the horses when they’ve clearly left the barn harms not only McDougal, she argues, but the First Amendment, due not only to Trump’s involvement but also to Cohen’s. Further bolstering McDougal’s argument is that she recently received a document-preservation request from BuzzFeed, which is defending a defamation lawsuit filed by Cohen, rendering her contractually enforced silence even less fair and reasonable. In December, during Trump’s president-elect tenure, after seeing her name appear in one news article after another and being unable to respond, McDougal approached American Media Inc. again (this time with new counsel) and the parties signed an amendment to the contract. The rider granted McDougal the right to respond to “legitimate press inquiries” in consultation with American Media Inc.., but she claims that American Media Inc. has refused every opportunity she’s brought to them, including articles by the New Yorker’s Toobin and Ronan Farrow.

While nondisclosure agreements like McDougal’s and Clifford’s are relatively common, rarely do the underlying facts become so public as to render the agreements themselves a farce, where the entire country is discussing the salacious details of an extramarital relationship between one participant who is legally prohibited from discussing it and one participant who is the president. That this has happened not once, but twice in the past few months only serves to further demonstrate what an embarrassment our national politics has become in the age of Trump. Given the convoluted circumstances underlying each nondisclosure agreement, not to mention shoddy legal drafting, both women would appear to have a decent shot of being able to offer their own stories in their own words in the days to come.