Cliff Sims v. Donald J. Trump, et al.

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Cliff Sims v. Donald J. Trump, et al.

#1

Post by Tiredretiredlawyer » Mon Feb 11, 2019 6:49 pm

https://www.documentcloud.org/documents ... laint.html

Cliff Sims (Team of Vipers author) files lawsuit against Trump and USA and claims Defendants are violating his First Amendment rights. He wants federal judge in DC District Court to declare his rights have been violated, enjoin more violations and order Trump and USA to pay his attorney's fees and costs.
“A black woman can invent something for the benefit of humankind.” -Bessie Blount-Griffin, physical therapist, inventor of devices for disabled WWII veterans, and forensic scientist.

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Re: Cliff Sims v. Donald J. Trump, et al.

#2

Post by Mikedunford » Mon Feb 11, 2019 7:28 pm

First impression: Sims has very good lawyers. I'm particularly impressed by the decision to not directly challenge the ongoing arbitration.


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Re: Cliff Sims v. Donald J. Trump, et al.

#3

Post by Northland10 » Mon Feb 11, 2019 8:33 pm

Mikedunford wrote:
Mon Feb 11, 2019 7:28 pm
First impression: Sims has very good lawyers. I'm particularly impressed by the decision to not directly challenge the ongoing arbitration.


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Feel free to elaborate, and if your explanation gets long, maybe you can split it into separate posts. Maybe 9 of them.
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Re: Cliff Sims v. Donald J. Trump, et al.

#4

Post by Mikedunford » Mon Feb 11, 2019 9:33 pm

Northland10 wrote:
Mon Feb 11, 2019 8:33 pm
Mikedunford wrote:
Mon Feb 11, 2019 7:28 pm
First impression: Sims has very good lawyers. I'm particularly impressed by the decision to not directly challenge the ongoing arbitration.


--
9
Feel free to elaborate, and if your explanation gets long, maybe you can split it into separate posts. Maybe 9 of them.
:lol:

It's not incredibly complex, but it is a bit technical. It also - fair warning - ties back to the original Stormy Daniels case, and my earlier critiques of how Avenatti litigated that case.

Short version:
Declining to directly challenge the arbitration gives them the best chance of keeping their case in court, instead of having it sent to arbitration.


Long version:
There's a policy in the federal courts of favoring the resolution of disputes through arbitration when the parties have agreed ahead of time to arbitrate disputes. (We can leave questions about the wisdom of such a policy and how it came about for another time; the important thing for our purposes is that the policy exists.) What the policy means in practice is that the courts are often reluctant to rule on things when there's a pending arbitration. They'd rather save judicial resources, wait and let the arbitrators deal with the issues, and, if necessary, look at things later if there's a challenge to the enforcement of the eventual arbitral award. (Which is usually harder to challenge than a case would be to appeal, but that's the parties' issue, not the court's.)

There's also a general principle of jurisprudence that a court generally has the competence to decide questions relating to its own competence. This is sometimes known for short as "competence-competence" ("kompetenz-kompetenz" in the original German). This captures the idea that a court has the ability to decide for itself whether or not it has the authority or jurisdiction to hear the case that's in front of it. If you think about it, it's kind of a no-brainer - because without something like this principle, no court could ever hear any case unless everyone involved is actively in agreement that the court has jurisdiction. In general, although arbitral tribunals are not courts, they normally have competence-competence.

Where arbitration is concerned, this means that an arbitral tribunal usually has the ability to resolve claims that the contract mandating arbitration is invalid or otherwise unenforceable. That's why, until the criminal case came up and the defendants conceded, the most likely outcome of the Stormy Daniels case was (IMO) that the case would be sent to arbitration. Avenatti was challenging the validity of the contract that Daniels had signed, but unless he was able to come up with reasons that the part of the contract with the arbitration clause was specifically invalid, for reasons unrelated to the validity of the contract as a whole, the most likely outcome would have been that the judge would have sent the matter to the arbitrator and let the arbitrator sort out whether the contract was valid.

Avenatti was mostly challenging the validity of the hush contract on grounds of illegality (based on the campaign finance allegations) and the more technical issue of failure of consideration based on Trump allegedly not being bound. Here, the challenge to the NDA would be on slightly different grounds, related to public policy. These would (IMO) provide a better chance at keeping the matter out of arbitration than was the case with the hush agreement, but there would still be the chance, if the case was brought as a direct challenge to the attempt to compel arbitration, that a federal judge would defer to the arbitrator at this stage.

So Sims' lawyers are trying to sidestep the issue. They're not asking the court to halt the ongoing arbitration. Instead, they've framed the claim as a direct constitutional claim, saying that by attempting to compel the arbitration, the federal government (in the form of Trump) is violating Sims First Amendment rights, and they're seeking a declaration to that effect, and an injunction that would cut off the arbitration. Because this is framed exclusively in First Amendment terms, rather than as a challenge to the validity of the contract, they've stated their claim in a way that maximizes the chances that they can keep their case in the courts rather than in arbitration.

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Re: Cliff Sims v. Donald J. Trump, et al.

#5

Post by RTH10260 » Mon Feb 11, 2019 9:57 pm

Mikedunford wrote:
Mon Feb 11, 2019 9:33 pm
:snippity:
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I see you are planning to break the sound barrier in 7... 6... 5... ;)

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Re: Cliff Sims v. Donald J. Trump, et al.

#6

Post by Tiredretiredlawyer » Tue Feb 12, 2019 10:56 am

https://www.nydailynews.com/news/politi ... story.html
Ex-White House aide Cliff Sims sues President Trump for coming after him after he published tell-all book

Trump’s 2016 campaign filed a private arbitration suit against Sims on Jan. 31, arguing his book violates a non-disclosure agreement he signed upon joining the presidential bid.

But [Mark] Zaid (Sims' lawyer), citing “sources,” charged the arbitration was filed on Trump’s orders, thereby violating Sims’s First Amendment protections, since the U.S. government — in this case, the President — is prohibited by the Constitution from preventing federal employees from speaking about their time in office once they leave, unless it pertains to classified matters.

In that sense, Zaid said, Trump is using his campaign as a “cutout” for revenge.

“It’s our understanding from sources that the President was consulted and instructed the campaign to proceed with the arbitration,” Zaid said.

Zaid stressed that the lawsuit, which was filed in federal court in Washington, D.C., is not seeking to dispute the campaign’s standing in seeking arbitration against Sims over any eventual NDA transgressions, but rather contends it’s invalid in its current form, having been ordered by Trump.

Zaid said he will represent Sims in any future arbitration proceedings as well.
“A black woman can invent something for the benefit of humankind.” -Bessie Blount-Griffin, physical therapist, inventor of devices for disabled WWII veterans, and forensic scientist.

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