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Trump team's moving of Stormy Daniels suit carries risks

Essential Consultants' plan is clear: remove the case to federal court briefly, then ask that court to send the case into arbitration.

by Danny Cevallos /
Adult film actress/director Stormy Daniels attends the 2018 Adult Video News Awards at the Hard Rock Hotel and Casino on Jan. 27, 2018 in Las Vegas.Gabe Ginsberg / Getty Images

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Legal analysis

How are a consulting firm and President Donald Trump able to singlehandedly take a lawsuit by adult film star Stormy Daniels out of her chosen forum in California state court?

The answer begins with the Constitution, which extends the federal judicial power to cases between "Citizens of different States." The Framers included “diversity jurisdiction” in the Constitution at least in part to protect out-of-state plaintiffs from the possible bias of local state courts.

The modern diversity statute gives federal courts power to hear civil cases where (1) the dollar amount in controversy exceeds $75,000, and (2) the parties are citizens of different states. The federal removal statute allows defendants to unilaterally drag a case from state court up to federal court, so long as the federal court could hear the case — which it can, if there’s diversity jurisdiction.

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Daniels, whose legal name is Stephanie Clifford, is suing to challenge the validity of a non-disclosure agreement about an alleged "intimate" relationship she says she signed in exchange for $130,000 in the fall of 2016, while Trump was running for president. The White House has denied the allegations against Trump.

Her suit says that Trump never signed the agreement, so he cannot now enforce it or the arbitration provisions in it. She asked the Los Angeles Superior Court to declare it unenforceable, allowing her to speak with impunity.

Trump and his personal attorney have removed the case to federal court, and have stated in those papers that Clifford is on the hook for at least $20 million for allegedly violating a secrecy agreement. They have not actually sued Clifford at this point; rather, that amount serves to satisfy the “amount in controversy” requirement of diversity jurisdiction.

Related: Stormy Daniels' lawyer says she was threatened with physical harm

There are a number of strategic reasons why defendants like Essential Consultants and Trump might want to remove this case. For example, California state courts require only a three-fourths majority of a jury for a verdict, compared to the unanimous verdict required by federal courts, which could effectively raise the burden for a plaintiff.

Sometimes, removal is just to take away the plaintiff’s attorney’s “home field” advantage by forcing her into a courthouse she did not originally choose.

But for Essential Consultants, Trump’s attorney Michael Cohen and the president, this tactical removal has negative consequences as well. Because all of the defendants must consent to removal, Trump himself has finally participated in this case, acknowledging for the first time that he is the “David Dennison” in the nondisclosure agreement.

Removal is automatic. Once defendants remove a case to federal court, a state court loses power over the case.

Related: Stormy Daniels offers to pay back $130,000 for freedom to speak about Trump

Now that the defendants have successfully brought their case to federal court, what’s their next move?

Strangely enough, their first order of business will be to try to get the case out of federal court. The defendants want this case in arbitration.

The rules of arbitration Essential Consultants, Cohen and Trump wrote into the nondisclosure agreement are, not surprisingly, very favorable to them. Returning this case to arbitration almost assures victory to the Trump team.

The odds are in their favor: California law, like federal law, favors enforcement of valid arbitration agreements.

On the other hand, if Clifford's very able counsel keeps this case in state or federal court and the defendants are forced into a court-monitored discovery process, the results could be cataclysmic.

Parties may discover anything that is nonprivileged and relevant about the other side, as long as it appears reasonably calculated to lead to the discovery of admissible evidence.

With very limited exceptions, every question at a deposition — if one is held — must be answered.

If Trump is made to sit for a deposition, he cannot refuse to answer a question just because he thinks it’s irrelevant. Lest Trump think the oath to tell the truth at a deposition is merely ceremonial, it’s important to note that same oath nearly ended another presidency.

President Bill Clinton was impeached in 1998 based upon perjury and obstruction of justice, but was not removed from office.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.

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