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.
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.