Trump Lawyer Hits Author With Cease and Desist Letter Over Bannon Comments

download-1donald_trump_president-elect_portrait_croppedAttorney Charles Harder has issued a “cease and desist” letter on behalf of his client President Donald Trump. The letter is addressed to author Michael Wolff and the president of the book’s publisher, but is clearly putting Steve Bannon on notice of a possible defamation action for his statements in the forthcoming book, “Fire and Fury: Inside the Trump White House.” The letter alleges violation of confidentiality rules and defamation in the forthcoming book, “Fire and Fury” by Michael Wolff.   The threat of legal action is highly dubious and the suggestion of a prior restraint order or injunction would go against decades of precedent.  It also leaves the worst possible optics of trying to stop the release of a book (and suggesting that Bannon is releasing bona fide confidential information).

Much of what Bannon states is obviously protected opinion. He is quoted as describing the Trump Tower meeting of Donald Trump Jr. Jared Kushner, and Paul Manafort with Russians  as “treasonous” and “unpatriotic.”

The cease-and-desist letter to Bannon alleges that he violated an employment agreement with the Trump Organization when he spoke with Wolff for a new scathing book about the presidency.  There is little that a court would do in such a case.  “Tellall books” are a long-standing problem for presidents and this type of letter is like complaining about the weather.  While Bannon might have trouble ever getting another clearance, he is unlikely to be on a short list for a forthcoming Trump appointment.  Moreover, these accounts from Trump officials have been appearing with regularity, including some non-anonymous sources on past meetings.

The letter charges that Bannon’s comments “give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients.” It adds, rather unconvincingly, that “Legal action is imminent.” If so, this would be a uniquely self-destructive filing.  It would fail in achieving any meaningful results while opening a new front (with potentially damaging discovery) for an already overloaded Trump team. With a rumored trove of hundreds of hours of tapes, discovery could present a serious risk.  It would also likely lead to another court loss, which would undermine the President’s standing on the issue.

While private companies (like those once headed by Trump) can impose contractual limitations on former employees from speaking against the company or revealing confidential material, the first amendment protects much more speech when the subject is a president of the United States.

The weakest threat is the suggested defamation action.  Roughly 50 years ago, the Supreme Court decision in New York Times v. Sullivan, where the Court laid out the standard for public officials (and later extended to public figures) in suing critics.  The case focused on an advertisement (above) that appeared in the New York Times referring to the abuses of civil rights marchers and claimed that Martin Luther King had been arrested seven times. (He had been arrested four times.) Although not mentioned, Montgomery Public Safety commissioner, L. B. Sullivan sued for defamation and punitive damages. His lawsuit was part of a pattern of such actions by segregationists to use state courts to bleed Northern media to deter their coverage of the Freedom Marchers. Sullivan won under Alabama law in a highly dubious state preceding that awarded $500,000.

225px-HugoLaFayetteBlackThe Supreme Court recognized the danger of such civil liability in creating a chilling effect on reporters and their companies in the coverage of political figures. Imposing a high standard for proof of defamation, Justice William Brennan sought to give the free press “breathing space” to carry out its key function in our system. Hugo Black (who served as Senator from Alabama before joining the court), added that Alabama politicians were using libel actions to “threaten the very existence of an American press” and “this case emphasizes the imminence and enormity of that threat.”

The “actual malice” standard requires a showing that the newspaper published a false report with either actual knowledge of its falsity or a reckless disregard of the truth. The factual foundation for the Bannon statements is comfortably above of the standard set out in New York Times v. Sullivan.

Moreover, much of this is protected opinion.  Trump is familiar with this protection.  As we discussed in January,  Trump was sued by political strategist and TV pundit Cheryl Jacobus after Trump slammed her during the campaign.  She triggered the ire of Trump by going on television to criticize Trump as a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.” Trump fired back on Twitter and said that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” Another tweet said Jacobus “begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”

Jacobus insisted that she was asked to apply and withdrew over her disagreement with Trump’s then-campaign manager, Corey Lewandowski. The court ruled that such tweets are manifestly opinion and not facts for the purposes of defamation law.

 

“Trump’s characterization of plaintiff as having ‘begged’ for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s state of mind and is therefore, not susceptible of objective verification . . . To the extent that the word ‘begged’ can be proven to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel.”

Trump’s lawyers cited Jacobus decision in another lawsuit brought against him by Summer Zervos, a former contestant on Trump’s reality television show “The Apprentice.” She has accused Trump of sexual assault and harassment as well as calling all of the women accusing him “liars.”  Trump denied the allegations, calling them “pure fiction” and labeling the women “horrible, horrible liars.”

The same rule would protect not just Trump but his critics.

Finally, any such action would contravene the recognized protections for government employees.  In  Garcetti v. Ceballos, the Court ruled “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, this is a former employee discussing matters of great public concern — an area that remains protected under the First Amendment.  Moreover, Trump has already used his public platform to fully address the allegations:

“Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party. Now that he is on his own, Steve is learning that winning isn’t as easy as I make it look. Steve had very little to do with our historic victory, which was delivered by the forgotten men and women of this country. Yet Steve had everything to do with the loss of a Senate seat in Alabama held for more than thirty years by Republicans. Steve doesn’t represent my base — he’s only in it for himself.”

There is little reason (in addition to little case law) to support an effort to enjoin speech or a publication in such a case.

In other words, this letter appears another example of “Fire and Fury” rather than a cognizable legal strategy.

Harder is a Beverly Hills-based attorney and has an extensive background on defamation issues.

 

73 thoughts on “Trump Lawyer Hits Author With Cease and Desist Letter Over Bannon Comments”

  1. Bannon was nazi-like conservative yesterday.

    Bannon is a celebrated liberal today.

    CNN hated Bannon yesterday.

    CNN loves Bannon today.

    CNN hated Comey yesterday.

    CNN loves Comey today.

    Mueller had a career in the “swamp.”

    Mueller is investigating the “swamp”-buster President.

    President Trump is unfit and incompetent today.

    President Trump became a billionaire in private business and won a primary and general election for the Presidency of the United States of America over 20 high caliber, well-funded opponents and the entire “swamp” yesterday.

    I’m starting to see a pattern here…a pattern of madness.

    TDS – Trump Derangement Syndrome

    1. Excerpted from the article linked above:

      “And in December, multiple reports showed that Mueller’s probe subpoenaed financial records from Deutsche Bank about people close to Trump. Interestingly, Kushner has a long-standing relationship with the German financial institution.

      For example, his real estate company finalized a $285 million loan from Deutsche Bank one month before election day as part of a refinancing package for one of Kushner’s company’s properties in Times Square.

      “It goes through Deutsche Bank and all the Kushner shit,” Bannon is quoted as saying in the Fire and Fury book. “The Kushner shit is greasy. They’re going to go right through that.”

      If Trump or Kushner laundered money for any Russians sanctioned under The Magnitsky Act or any other US sanctions regime, then Russia would have leverage over Trump and Kushner that the Russians could exploit to extort foreign policy concessions from a sitting POTUS that would be favorable to a hostile foreign power–namely, The Russian Federation. The preferred pattern of play under that scenario would be full public disclosure of whatever compromising information the Russians might have about Trump or Kushner’s money laundering. Any attempt to prevent investigation and disclosure of such compromising information–if it exists–could escalate the potential criminal charges from obstruction of justice to . . . conspiracy against The United States.

      But I still don’t see how Bannon arrives at a charge of treason in that case. The Russian Federation would have had to have been declared an enemy of The United States or a State thereof [New York, for instance]. The attempt to impede the investigation to avoid disclosure of the compromising information would have to constitute the overt act of aiding and abetting an enemy of the United States, or a State thereof. And, of course, there would have to be two witnesses to one and same overt act. It would be far more practical for the State of New York to indict Trump or Kushner for money-laundering, then wait to see what the Congressional Republicans would do about that once their collective testicles were fully distended again.

      They say the pain from retracted testicles is often worse than the pains of child birth, you know. And you should see the medical procedure for going up the iguinal canals with a pair of long-handled teaspoons and gently pulling those family jewels back down into their tunica vaginalis inside the scrotal sac. I wouldn’t wish it upon my worst . . . actually I might wish something like that. OMG, I have TDS; don’t I????

      1. According to The Mayo Clinic, L4D is wrong again:

        “The movement of a retractile testicle almost always occurs without pain or discomfort. As a result, it’s noticed only when the testicle is no longer seen or felt in the scrotum.”

        Well, in that case, I no longer wish it on Congressional Republicans.

    1. Swarthmoremom, on the basis of the article linked above (Thanks, BTW), I have to say that I’m truly surprised that no one here on this blawg has yet to accuse Steve Bannon of being a member of the infamous deep-state conspiracy to conduct a slow-as-molasses coup d’état against a sitting POTUS.

      How could the greatest bombshell of all, thus far, come from within Trump’s inner-circle? Surely there has to be some sort of retroactively anachronistic way to enlist Steve Bannon in the deep-state conspiracy. Wait. I’ve got it. Bannon was running a false-flag operation from the get-go. That’s it; isn’t it? If not, then . . . the deep state is dead as a doornail.

      1. The author of the book himself said the whole thing is fiction and thus a waste of time to read, or to comment on in these forums. We all might as well write “tell all” books that “let the reader decide” what is real and what is not. Kind of like those super cool Choose Your Own Adventure books from when most of us were kinds. (Volume 5 was my favorite I believe).

  2. Herr Bannon’s other candidates (other than Roy Moore and Nehlen) are listed below. Media Matters has the down, dirty and ugly about them. (1) Ward for Senate in Az., (2) Grimm for House in N.Y., (3) Tancredo for Colo. Gov., (4) Wagner for Penn. Gov. and (5) Stewart for Senate from Va.
    Foster Friess and Bannon talked about a Foster candidacy. Funny when a rich guy, wearing Christian on his sleeve (if not his heart) sidles up next to the thrice married power jockeys.

  3. LOL ! Trump “triggering” lefties – is the best entertainment going right now. But, my god, surely at some point these poor people will realize they are the gullible cat dutifully following Trumps laser pointer – every.single.time. He chuckles. We chuckle. Sometimes we fall out laughing.

    Lefties – wipe your tears on occasion and check out your 401K’s and IRA’s ……………

    Life is good in the great US of A !

    1. “Surely at some point these poor people will realize they are the gullible cat dutifully following Trumps laser pointer – every.single.time.”

      Your house lacks mirrors apparently.

      1. Dave137, one shudders to think of the retinal damage that could be caused by setting Trump’s laser pointer loose in a House of Mirrors colonized by gullible cats. O! The caterwauling!

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