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Does it affect her legal case?

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Avenatti will likely argue that, with a few words, Trump has effectively sealed off any option to personally enforce the settlement agreement or the arbitration clause against Daniels. Only Essential Consultants, or “EC” can even try to enforce it. EC is the only party other than Daniels who signed the agreement, and now Trump’s response affirms that EC and Daniels were the only parties who knew of the agreement’s existence.

So why would Trump make these statements that Avenatti said indicates he is “undisciplined” and has “finally cracked”?

Because Trump’s statements also fit with the Trump/EC/Cohen theory of the case, too.

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That’s the beauty of contract law: The parties can take the same signed (or unsigned) agreement entered into by the parties, apply completely different principles of contract law, and arrive at completely different interpretations of the same writing. What one side calls an “undisciplined” meltdown, the other side calls a statement supporting their argument.

Trump not knowing anything about the payments fits with the defense theory of the case: Trump didn’t sign the settlement agreement because he didn’t have to in order for it to be enforceable.

To Cohen and Trump, arguably, the “and/or” provisions of the contract mean that either Trump or EC could enforce it against Daniels. Because “and/or” gives EC power equal to Trump, Trump didn’t even need to sign the agreement.

In fact, Cohen’s attorney David Schwartz recently took it a step further, and argued to CNN’s Anderson Cooper that Trump is not a “party” at all, but rather a “third party beneficiary.”

A contract, made expressly for the benefit of a non-party, may be enforced by that non-party, even if he did not sign the agreement. In that case the non-party is a “third-party beneficiary.”

So in this situation, a “donee beneficiary” is a third-party beneficiary (Trump) to whom a party to the original agreement (Cohen) intends to make a gift of the other party’s (Daniels’) performance (not speaking about the alleged tryst) under the original contract.

Third-party beneficiaries are a common feature of contract law. Indeed, most of us are either third-party beneficiaries under some contract, or we have contracted to enrich donee beneficiaries. Indeed, with just a few changes to the original agreement — like deleting the Trump signature line, which suggests he was a party, not a beneficiary — this “beneficiary” argument might have been airtight.

Is the current Daniels/EC/Trump agreement, as worded, crystal clear as to whether Trump is a party or a third-party beneficiary?

In a word: No.

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



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Democratic Rep. Joaquin Castro seeks larger role in Congress as Foreign Affairs chair

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SAN ANTONIO — The next chairman of the House Foreign Affairs Committee must help Joe Biden rid the world of the coronavirus and rebuild the damage President Donald Trump did to the country’s diplomatic infrastructure, Rep. Joaquin Castro, one of three candidates for job, said Tuesday.

Castro, D-Texas, in a disrupter move, is hoping to leapfrog more senior Democrats who are seeking the position, Gregory Meeks of New York and Brad Sherman of California.

The Congressional Hispanic Caucus officially endorsed Castro — its outgoing chairman — on Tuesday and sent a letter asking House colleagues to vote him in as the next chairman.

A three-way contest was set in motion when the current chairman, Eliot Engel, D-N.Y., lost his primary to Jamaal Bowman.

In his campaign for the post, Castro has pushed for a “new generation” of leadership and a more global approach to foreign affairs.

In a phone call Tuesday, Castro said: “We should look at things like climate change and climate refugees and the rights of indigenous peoples and women and LGBTQ individuals through a foreign policy lens.

“The Foreign Affairs Committee has only paid scant attention to those things over the years,” said Castro, who is in his San Antonio district for the Thanksgiving recess.

Castro and Rep. David Cicilline, D-R.I., on Tuesday introduced a measure called the LOVE Act, which would require Congress to review the cases of hundreds of diplomats who lost jobs because of their sexual orientation in the past.

To help in the pandemic, the committee should be a partner in overseeing the effective distribution around the world of whatever vaccine is approved to fight Covid-19.

Castro also said the committee needs do a damage assessment of the State Department and repair the country’s diplomatic infrastructure.

“It’s important we that we not just try to go back to the way things were four years ago, but to actually see how we can improve things and approach things differently,” he said.

Migration as foreign policy, diplomatic diversity

That includes migration, which Castro said the committee hasn’t spent enough time on over the past several years.

Since 2014, the country has had more a million women and children come to the border. But in that time, the full committee has had one hearing on the issue of migration from Central America, he said.

“It’s been treated as an issue for the Homeland Security Committee, and that’s the fundamental problem and how we have to rethink these issues,” he said. “When you only look at migration as a threat and a national security issue, when you only see people as potential threats … it dehumanizes them.”

Congress appropriated hundreds of millions of dollars to fund programs to assist the Northern Triangle countries of Guatemala, Honduras and El Salvador without Foreign Affairs input in recent years, he said.

Castro said he has would make diversity in the diplomatic corps and in committee witness testimony a central component of the committee’s agenda.

Noting that few Latinos and Latinas are in the diplomatic corps, Castro said the lack of diversity among diplomats “affects how the rest of the world sees the United States.”

“The rest of the world should know we are an important part of the United States,” he said.

In committee hearings, more women and people of various ethnic and racial backgrounds should be heard from as expert witnesses, he said. The committee tends to hear from the same people, and testifying before Congress can help lift the careers of some of the experts in their professions, he said.

An uphill battle?

Former Rep. Ileana Ros-Lehtinen, R-Fla., who is Cuban American, is the only Hispanic to have led the committee. Castro would be the first Mexican American.

Castro faces an uphill battle, particularly against Meeks, who is seen as the favorite, and because he is seeking to upend the usual preference for seniority in committee chairmanships.

Castro said that if he is elected, he would limit the time he serves to give others an opportunity.

“So many people’s talents just die on the vine, and they end up leaving Congress for something else or retiring without ever having a chance to compete for or serve as chair of the committee,” Castro said.

Seniority tends to work against diversity because there are fewer members of Congress who are not white men. Only recently have more female, Black, Latino, Asian/Pacific Islander or Native American people been elected to Congress.

“For the Congressional Hispanic Caucus [members], even if you waited five years or so, you still wouldn’t have anybody that is in the No. 1 position in one of the committees,” he said.

“People could retire unexpectedly or get beaten in their races,” he said, “but looking ahead, you are not going to have very many, if any, Latinos who are the most senior member of a committee looking five years down the road.”

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'Disgraceful!' Sturgeon condemned for backing 'vigilante' Blackford in Covid bullying row

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NICOLA Sturgeon has been condemned for praising the “grace and dignity” of her party’s Westminster leader after he was branded a “vigilante” in a bullying row.

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Biden formally introduces national security, foreign policy team

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President-elect Joe Biden introduced key members of his Cabinet and national security team during an event in Wilmington, Delaware, Tuesday afternoon, and declared: “America is back.”

“It’s a team that will keep our country and our people safe and secure. It’s a team that reflects the fact that America is back. Ready to lead the world, not retreat from it. Once again, sit at the head of the table. Ready to confront our adversaries, and not reject our allies, ready to stand up for our values,” Biden said as he introduced his choices for positions he described as “critical.”

Those picks include Antony Blinken as secretary of state, Alejandro Mayorkas as secretary of Homeland Security, Avril Haines as director of national intelligence, Linda Thomas-Greenfield as U.S. ambassador to the United Nations, Jake Sullivan as national security adviser and John Kerry as Biden’s special envoy for climate.

The remarks were Biden’s first public comments since the head of the General Services Administration on Monday informed the president-elect that the official government transition process has been approved.

Biden said he was “pleased to have received the ascertainment from GSA to carry out a smooth and peaceful transition of power, so our teams can prepare to meet the challenges at hand — to control the pandemic, to build back better and to protect the safety and security of the American people.”

He also urged lawmakers to take swift action in confirming his national security team.

“To the United States Senate, I hope these outstanding nominees receive a prompt hearing, and that we can work across the aisle in good faith to move forward for the country,” Biden said.

Earlier in the day, Sen. Ben Sasse, R-Neb., who has acknowledged Biden as the president-elect, offered some faint praise for the cabinet picks, saying Biden’s “resisting the far left on most of the picks to date.” Sen. Marco Rubio, R-Fl., tweeted that Biden’s choices “went to Ivy League schools, have strong resumes, attend all the right conferences & will be polite & orderly caretakers of America’s decline … I have no interest in returning to the ‘normal’ that left us dependent on China.”

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Mayorkas, who like Rubio is Cuban American, is the first Latino and the first immigrant picked to head Homeland Security, while Haines is the first woman nominated to be DNI. Kerry’s selection marks the first time that the National Security Council will include an official dedicated to climate change.

All of Biden’s national security nominees spoke at the event, with Blinken discussing the importance of the country’s ideals.

“My late stepfather, Samuel Pisar, he was one of 900 children in his school in Bialystok, Poland, but the only one to survive the Holocaust after four years in concentration camps,” Blinken said. “At the end of the war, he made a break from a death march into the woods of Bavaria. From his hiding place, he heard a deep rumbling sound. It was a tank. But instead of the Iron Cross, he saw painted on its side a five-pointed white star. He ran to the tank, the hatch opened. An African-American GI looked down at him. He got down on his knees and said the only three words that he knew in English that his mother taught him before the war, ‘God bless America.’ That’s who we are. That’s what America represents to the world, however imperfectly.”

After the event, Biden was asked if he’d be willing to meet with President Donald Trump, who’s refused to concede the election. “Of course I would, if he asked,” Biden said.

Trump spoke briefly to reporters in the White House briefing room Tuesday afternoon, but made no mention of the election results. Instead, Trump touted the stock market, claiming credit for its record high.

“I just want to congratulate all the people within the administration that worked so hard. And most importantly I want to congratulate the people of our country because there are no people like you,” Trump said, before leaving the room without taking any questions. He later pardoned a turkey named Corn, who was joined by another named Cob, in honor of Thanksgiving.

After weeks of delay, GSA Administrator Emily Murphy wrote in her Monday letter that Biden, whom she referred to as “the apparent president-elect,” is now able to access to millions of federal dollars and other government resources to begin his transition to power.

A Biden transition official told NBC News on Tuesday that the Biden transition team is now communicating and interacting with all federal agencies.

Biden is also set to receive the president’s daily intelligence briefing, giving him access to crucial national security information, a spokesperson for the director of national intelligence’s office said.

Biden told reporters “it’s been offered.”

“They’ve been very forthcoming, offering all access and so we are going to be starting those on a regular basis,” Biden said.

Asked if he’s spoken with Dr. Anthony Fauci, the nation’s top infectious disease doctor, Biden said he hadn’t but “my staff has.” He added, “He’s been very, very helpful.”

Trump said Monday he is still fighting the election results, later posting a baseless conspiracy about voting machines, but said he recommended that Murphy “do what needs to be done with regard to initial protocols, and have told my team to do the same.”

In other transition news:

  • In an exclusive interview with NBC News’s Lester Holt, Biden said he was optimistic that his team could make up for the time already lost in the transition given the “outreach” from the Trump administration. “We’re already working out meeting with the Covid team in the White House and how to not only distribute but get from a vaccine being distributed to a person able to get vaccinated, so I think we’re gonna not be so far behind the curve as we thought might be in the past,” Biden said.
  • Biden is expected to nominate Janet Yellen, former chair of the Federal Reserve, as his treasury secretary.
  • Mayorkas signaled a shift from Trump’s hard-line immigration policies.
  • Senate Minority Leader Chuck Schumer, D-N.Y., said the GSA letter is “probably the closest thing to a concession that President Trump could issue.”
  • Legal experts called the effort from Trump and his lead attorney, Rudy Giuliani, to overturn the election results “beyond an embarrassment.”
  • Pennsylvania certified Biden’s win as more states prepare to certify, dimming Trump hopes of overturning election results.
  • Sen. Dianne Feinstein, D-Calif., says she’s stepping down as top Democrat on Senate Judiciary Committee.

Geoff Bennett and Ken Dilanian contributed.



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