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. “After Trump Seeks to Block Book, Publisher Hastens Release”

      By PETER BAKER JAN. 4, 2018

      “WASHINGTON — President Trump threatened legal fire and fury on Thursday in an effort to block a new book portraying him as a volatile and ill-equipped chief executive, but the publisher defied his demand to halt its release and instead moved up its publication to Friday because of soaring interest.”

  1. This article calls out the USGinc. hypocrisy of saying we’re going to protect human rights in Iran by ruining them at home!

    “The West’s attempt to crush whistleblowers, advocates of transparency and protest movements sheds light on the duplicitous nature of current calls from the West to support ‘free speech’ or to protect human rights in Iran. The same BBC that breathlessly related Sarah Huckabee’s “warning” to Iran regarding its treatment of protesters also reported that Trump’s Attorney General Jeff Sessions had called Assange’s arrest a ‘top priority.’

    With all of this in mind, it is clear that, while Iranian protestors absolutely should be protected, a US-led military intervention in the name of protecting human rights would be unacceptable. The West and its allies including Saudi Arabia have violated human rights tirelessly both at home and abroad. Perhaps American establishment figures should turn their attention towards addressing domestic human rights abuses before they encourage regime change in other nations.”

    https://www.zerohedge.com/news/2018-01-04/after-treatment-domestic-critics-western-support-iranian-protestors-rings-hollow

    1. Dow up 25% in a year? No smoke and mirrors there. Is Wall Street short selling yet?

    2. It’s amazing! Especially because Trump inherited a weak economy with hundreds of thousands of job-losses every month, the collapse of major companies and implosion of the market, and skyrocketing foreclosures.

      I’m so glad Trump became
      President in 2008. Because then the next guy can take credit by cutting regulations that favor companies over consumers considering that President could be a corporate donor himself.

      Unbelievable, believe me.

      1. And, Trump (who lies an average 5 times a day) saved America from catastrophic plane failures because safety guidelines were passed prior to 2017.

  2. Trump certainly has his faults, but the Clintons are a crime family.

    1. We need to get Hillary out of office quickly. I’m glad you’re on top of it.

  3. There is a “NewClear” option to suing to stop the book. Trump can clear the decks in a new way.
    That way is coming to a theatre near you.

  4. Trump like Roy Moore won’t sue. The discovery process could very likely be harmful to them.

  5. “He is quoted as describing the Trump Tower meeting of Donald Trump Jr. Jared Kushner, and Paul Manafort with Russians as “treasonous” and “unpatriotic.”
    ______________________________________________

    It is ludicrous to describe actions to deny the presidency to Hillary Clinton as “treasonous.”

    Hillary Clinton was the tip of the spear of the “deep state” coup d’etat in America.

    Denying Hillary Clinton the presidency is the most patriotic act in memory.

    1. Would you favor firing every civil service Federal employee, and only hiring replacements swearing a personal oath of fealty to Donald Trump?

      1. Is your question directed at George’s 2:53 pm comment? Because it seems like a totally disconnected question based on what George said. Or maybe yours was just one of the canned comments supplied by the DNC?

        1. Yes, it was directed at George’s 2:53 comment. I made the comment, because George seems to be implying that anyone not pledging blind obedience to Trump must be an operative of the “deep state.” [used to be known as career civil servants] So it seems to me that the only thing that would make Trump feel happy and secure, would be to fire all the present civil service employees and replace them with those pledging personal fealty to Trump. And no, I have no connection to canned comments or canned tuna or a canned laugh track. Or the DNC.

          1. Jay S., [sarcasm alert] Trump and his family’s Secret Service agents are career civil servants–strike that–agents of the slow-as-molasses deep-state coup d’état. Think of the Office of the POTUS as the ultimate federal witness protection program. Trump needs the deep state to protect himself and his family from Putin and The Ruskies. Take note: Crooked H still lives! And that’s absolute proof positive that Putin likes HRC way far better than DJT. It’s so unfair. Don’t take my word for it. Ask George.

    2. George said, “It is ludicrous to describe actions to deny the presidency to Hillary Clinton as ‘treasonous.'”

      George also said, “Denying Hillary Clinton the presidency is the most patriotic act in memory.”

      George, in your capacity as a world renown Constitutional scholar, you surprise me. The Russian Federation had not been declared an enemy of The United States at the time of the Trump Tower meeting between the Russians and the Trump campaign’s brain trust. Moreover, nothing Trump Jr., Kushner, nor Manafort did in that meeting constituted an overt act, such as aiding and abetting an enemy of The United States, for instance. And Bannon would have to find two witnesses to one and the same overt act, anyway, to make a case for treason against Trump Jr., Kushner and Manafort.

      Sure, there’s that business about The Magnitsky Act and the Kremlin-fabricated criminal charges against Bill Browder and the Ziff brothers that Veselnitskaya et al were pedaling. But Manafort put the kibosh on that topic of conversation so soon he showed up fifteen minutes late for that meeting.

      What I think happened is that words like treason, treasonous, traitor and treachery are mere habits of speech, or verbal tics, for alt-right guys like Steve Bannon. He could’ve been watching a foobaw game with Michael Wolff while talking about the globalist, Kushner. Do you know any alt-right guys like that, George?

  6. Trump’s buttons can be pushed by just about anyone. His history is not that of a self made person who experienced the need to listen and learn. The private business world is full of eccentrics who do whatever, whenever, and get away with it because they can pay off people, paper them into bankruptcy, or simply drag the moments out past a natural life span. Trump is one of these eccentrics. Bannon, on the other hand, is a self made man. Bannon may be a bottom feeder but he has succeeded in just about every diverse activity he has undertaken. Bannon was primarily responsible for the ‘take no prisoners’ approach that accentuated Trump’s exaggerations into lies and convinced the mindless rabble that made the difference, those who were simply pi**ed off, but without a clue as to why. Trump knows the ‘deal’ when he has billions to play with, his and his father’s connections, and two generations of practice, yet still manages to go bankrupt on a regular basis and routinely make a fool out of himself. Trump’s successes are only there when one is extremely selective. Bannon on the other hand has done and succeeded at various enterprises, by himself primarily.

    Firstly, Trump is an idiot. Secondly Trump has buttons that a never ending line of people push and he flips out. Thirdly, no one knows better how to manipulate Trump than Bannon. Bannon knows where all sorts of stuff is buried. Ivanka says that she may run for President in a dozen or so years. Bannon hates Ivanka. Gee, Golly, do you think we may be losing a great President, a woman-perhaps the first, and a wiz bang born to riches genius if Bannon talks. We already know that there are enough idiots in America who would vote for the blonde-not natural-bimbo. What a circus. How long will the right defend this nonsense?

    1. Isaac, the choice was between Trump and a criminal. America made the right choice. Why don’t you go harass the Dem party for nomination Clinton instead of bashing Trump. Put the blame where it should be.

      1. TMP44

        You hit the nail right on the head. In the case of Clinton we have a sleaze ball and an alleged criminal. However, Bill was and probably is still a greater sleaze ball and somewhat narcissistically spineless. Willie squirmed and messed himself trying to weasel out of admitting that he boinked other women; caught in the act. As debasing as both Clinton’s disgusting behaviors were and perhaps continue to be; and it is largely hind sight and bias as is always the case when dealing with the opposition, Bill performed well as President in almost all ways Presidential. The economy flourished and he was respected through out the world. The world’s respect typically doesn’t mean much to the narrow and close minded, however.

        When it comes right down to it the argument for and/or against Trump and Clinton is one where they both are wanting morally, ethically, and in many other ways. What is left is competence. In each case there is no Jimmy Carter and the job done. There is one individual who is a blithering idiot doing a nothing job and lying through his teeth, somewhat like the Soviets lying about inventing baseball or Erdogan lying about Muslims discovering the Western Hemisphere. There is little difference between Trump’s behavior and that of the North Korean leader. Trump is simply not Presidential material in any way whatsoever. Clinton, on the other hand-but we will never know-sits head and shoulders above Trump in every way Presidential. As distasteful as it might have been, America would have been much better off with Clinton as President than the buffoon that somehow got in with 3 million less votes than Clinton. But hey those were all illegal immigrants bussed in from South of the Border, down Mexico Way. Even Bush’s administration was more Presidential than this mutt; and that is saying something.

        1. After 44 Presidents, a Civil War, two World Wars, Cold War, Korea, Vietnam, Gulf, our current unending war, Depression, Recession, Inflation, Deflation, Stagnation and $20 Trillion in debt, the republic will survive #45. With Sanders, it would have been a long shot. With Clinton, forget about it. Fortunately we don’t have to concern ourselves with either Sanders or Clinton. President Trump has the watch and despite the sky-is-falling, hair on fire claims by the Left, many conservatives that helped get him into office have no qualms about removing him should he violate the oath of office. Until then, I’ll cringe at his behavior, but I will measure his performance like I do every person elected to office; by their fidelity to the constitution and the security of my natural rights.

                1. Best site to understand Koch plots, ALEC Exposed. Best site run by millennials, UnKochMyCampus.org,

                  1. From the article linked above:

                    “Without the contract with the Koch brothers, this may have been a more simple debate about ideological problems and a president without academic experience, Lakey said.

                    But it’s not — and there are too many powerful political interests in FSU’s governance, especially those tied to the Koch brothers, for Thrasher’s appointment to be a coincidence, she said.

                    Thrasher also was chosen multiple times as legislator of the year by the conservative, Koch-supported American Legislative Exchange Council, Lakey said. And Allan Bense, chairman of the university’s board of trustees, is also chairman of the board of directors of the James Madison Institute, a Koch-funded think tank.

                    Thrasher has denied any sort of relationship with the Koch brothers, although he has received modest campaign contributions from Kansas-based Koch Industries.”

                    1. The story about Koch control of faculty appointments, re-hirings,…established infamy for the FSU Economics Dept. Media reported about it at the time.
                      What is especially galling is taxpayers created public colleges as a gift to students who were denied access to legacy-admission schools. Then, people like the Koch’s and Gates throw the schools a few bucks and they get to dictate content and/or delivery methods.

                    2. Check out Gates’ Frontier Set. Two state university systems signed on to COOPERATIVELY (1) create content and (2) develop delivery methods.

        1. Jay S., [sarcasm alert] The Russians hacked U.S. uranium from HRC’s unsecured, private email server right before they deleted 30,000 of those radioactive emails. Otherwise Julian Assange would be hairless and glow in the dark.

          1. P. S. It’s a well known fact that Hillary’s pants-suits are lined with lead. What more proof do you need, Jay S. ???

  7. While everyone has their First Amendment rights in the USA, nothing stops you from contracting them away. Bannon might have and if so he owes.

    Bannon also ought to read Branti v. Finkel, 445 U.S. 507 (1980),

  8. “While Bannon might have trouble ever getting another clearance, he is unlikely to be on a short list for a forthcoming Trump appointment.”

    Since when is “clearance” relevant with this administration?

  9. Prior restraint by Trump? No way is that possible under the law. An actual lawsuit for defamation? That would open up Trump for pre-trial depositions as to the truth or falsity of Bannon’s statements.

    Trump will never sue ANYONE for defamation.

  10. We should support the right of anyone, especially those involved in public service, to speak freely of their experience without disclosing classified material. We need more people willing to pull back the curtain and show to the American people what they have created (enabled) regarding this monstrous, progressive, administrative state. Put it out there and let the people decide for themselves.

      1. FishWings, have you ever seen two Big Horn Sheep butting heads together? I wonder how thick their skulls have to be to do that. The impact is really loud. But more articulate than either Trump or Bannon.

  11. Trump is a fascist. I hope his followers will not go along with Trump attempting to gut the First Amendment. Things are so strange right now. The left is trying to silence criticism and the right is often the victim of their efforts. In this case the right will likely side with their “leader” as he attempts to silence criticism.

    We need to be much more honorable people than we are being at this time. This action by Trump is wrong it it should not be excused or supported in any way by people who care about the Constitution.

    1. Jill, you are living in bizarro world. The fascists are on the left. They are the ones trying to destroy the Constitution and silence their opponents. Or do you need a refresher on how Clinton and Obama take aim at their adversaries?

  12. Reblogged this on The Inquiring Mind and commented:
    This post by Professor Turley reinforces much of Adam’s comments earlier. Indeed it gives several reasons why the letter from Trump’s lawyer is tactical bluster.

  13. JT, thank you for bringing this up. Ahhhh its not JT is it. Well that figures.

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