The Volokh Conspiracy
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Henry Holt & Co., through its lawyer (Eliz. McNamara at Davis Wright in NYC), has sent a response [available here] to Trump's cease-and-desist letter. It's a nicely-crafted letter, worth reading as a small reminder that excellent legal prose does not have to be incomprehensible mumbo-jumbo. Some highlights:
"[Y]ou demand that my clients cease publication of the book and issue a full and complete retraction and apology. My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted." [Note the Oxford comma after 'occur'—nice! It's part of what makes the sentence sound downright Churchillian.]
"Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory."
"[W]e note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for 'false light invasion of privacy.' As you are no doubt aware"—Ouch!—"New York does not recognize such a cause of action. Not only is tis claim meritless; it is non-existent. In any event, it is patentily ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office." (emphasis in original)
Regarding Trump's claim that Holt could be liable for "inducing" a breach of contract by Steve Bannon: "The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon's responsibility—not Henry Holt's or Mr. Wolff's—to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment."
And finally, in regard to the seven pages of document -preservation instructions in Trump's letter: "[My clients] will comply with any and all document preservation obligations the law imposes upon them. At the same time, we must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regading himself, his family members, their businesses, the Trump campaign, and his administration, … including any and all documents pertaining to any of the matters about which the book reports." That's a nice turnabout.
Back during the 2016 presidential campaign, I posted a short commentary on what I called Trump's "adhesion contract from hell"—the nondisclosure agreement that anyone volunteering to make calls on behalf of candidate Trump's campaign had to sign before they would be allowed to work on the campaign. It was a most peculiar document; as I wrote at the time, it is probably not "the silliest or most outrageous" nondisclosure agreement I've ever read," but it is definitely on the shortlist for that dubious honor.
In addition to some customary and seemingly reasonable provisions – e.g., a promise not to disclose any confidential information imparted in connection with the phone-calling activities, for instance – it also contained a promise by the volunteer not to "demean or disparage" (and to "prevent any employees" from demeaning or disparaging):
- "The Trump Company, Mr. Trump, any affiliated Trump Company, any Family Member, or any asset [that] any of the foregoing own, or any product or service [that] any of the foregoing offer …"
- by means of "any means of expression, including but not limited to verbal, written, or visual, including audio recording of any type, written text, drawing, photograph, film, video, or electronic device, in any manner or form,including but not limited to any book, article, memoir, diary, letter, essay, speech, interview, panel or roundtable discussion, image, drawing, cartoon, radio broadcast, television broadcast, video, movie, theatrical production, Internet website, e-mail, Twitter tweet, Facebook page, or otherwise, …"
- "in any language"
- "in any country or other jurisdiction"
- forever ("during the term of your service and at all times thereafter")
Pretty ridiculous. Good lawyers should be ashamed of themselves for putting nonsense like this together. One can perhaps understand, and defend as reasonable, a political campaign's need to get a promise from volunteer phone-bankers not to "demean or disparage" the candidate himself while they are working, ostensibly on his behalf. But not to disparage any member of Trump's family?! Or any asset belonging to any Trump company or Trump family member ("Man, Trump Tower over there sure is one ugly monstrosity.")? And imposing an ongoing no-disparagement obligation continuing into the indefinite future? Seriously?
It is inconceivable that a court would enforce these contracts as written. There is a very well-developed body of law that establishes the principle that non-disclosure agreements have to be reasonable, and have to balance the employee's (or, in this case, the volunteer's) rights to express him/herself freely (and the public's right, and need, to obtain information on matters of public concern) with the hiring party's legitimate interest in protecting itself from harm, and it is difficult to imagine how Trump could defend the absurd scope of these non-disclosure provisions as reasonable. [Not to mention that the obligation to prevent your employees (if you have any) from demeaning or disparaging Trump (or a Trump asset!!) is not only absurd and unenforceable, it may well constitute a violation of US labor law.]
It was, to be sure, a very, very minor footnote in a campaign that turned on larger and more important questions. But it looks like the agreement is back in the news. On Wednesday, New York Magazine published excerpts from a book by journalist Michael Wolff which, to put it bluntly, paints a most unflattering portrait of Trump and the Trump campaign and includes several disparaging comments by former Trump campaign executive and chief strategist Steve Bannon — for example, Bannon refers to Trump's campaign as "the broke-dick campaign," and has some choice words regarding the now-notorious June 2016 meeting between Donald Jr., son-in-law Jared Kushner, then campaign chairman Paul Manafort, and Russian lawyer Natalia Veselnitskaya at Trump Tower in New York:
"Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it's all of that, you should have called the FBI immediately."
Trump responded to Wolff's reporting with a pair of cease-and-desist letters from his attorneys (Harder Mirell & Abrams of Beverly Hills CA) — one to Bannon and one to Wolff and his publisher (Henry Holt & Co.) — claiming that Wolff's book "gives rise to numerous legal claims including defamation by libel and slander, and breach of [Bannon's] written confidentiality and non-disparagement agreement with our clients." The letter also demands that they "immediately cease and desist from any further publication, release or dissemination of the Book, the Article, or any excerpts or summaries of either of them," and that they "issue a full and complete retraction and apology to my client as to all statements made about him in the Book and Article that lack competent evidentiary support."
If you're not familiar with scorched-earth litigation tactics and the Art of Threatening a Lawsuit (of which Mr. Trump is such an expert practitioner), you should really read the entire letter. After a general outline of the kind of claims (defamation, libel, invasion of privacy, breach of contract) to which publication of the book, in Mr. Trump's view, gives rise, the letter goes on to declare that the recipient is now "on notice of the foregoing claims" and therefore has a "legal duty to affirmatively preserve, and not delete, destroy, hide or misplace, all documents, communications and materials … that refer to or relate to in any way to the Book and any/all of its contents, the Article and any/all of its contents, Mr. Trump, any/all of his family members, and/all of their businesses, and/or the Donald J. Trump for President campaign." This is followed by six pages of detailed instructions about how this document preservation obligation is to be fulfilled. It makes for depressing reading.
And then: "Please also send immediately an electronic copy of the full text of the Book, in searchable form, and send via messenger a hard copy of the Book to my office address at the top of this letter, so that we can fully assess all of the statements in the Book." (emphasis in original). I like the chutzpah of that—immediately! But the "please" is a tip-off that even Trump's lawyers understand that they have no legal right to demand delivery of the full text of the book (in searchable form, no less), and have to rely on good old-fashioned professional courtesy. Ha!
The claims against Bannon are based on the assertion that "[his] communications with Mr. Wolff in connection with the Book violated several provisions of Mr. Bannon's written agreement with Donald J. Trump for President, Inc.," in particular those provisions "preventing Mr. Bannon from … communicating with any members of the print or electronic media about Mr. Trump, or any of his family members, or any of their businesses, or the campaign [or] disparaging Mr. Trump, or any of his family members, or any of their businesses, or the campaign."
That nobody is particularly surprised by the news that our president is trying to prevent the publication of a book highly critical of him and his family is one sign (of many) of how far down into the depths Trump has been dragging us. Though I doubt it will actually materialize, a lawsuit between Messrs. Trump and Bannon would surely be one for the ages; one can only imagine the ratings that would be garnered by an episode or two devoted to the lawsuit in the hideous reality TV series ("Celebrity President") that we all seem, somehow, to have stepped into.
But as I said, I doubt it will come to that; even Trump is aware that such a suit will put the question of the truth or falsity of Bannon's accusations on the table, and one can hardly imagine that that will end happily for the president.
Two interesting things emerge from this, however. First, it appears that Bannon—just like Joe PhonebankGuy—had to sign and did sign that ridiculous non-disclosure agreement. It's pretty bizarre; presumably, Bannon paid as much attention to the terms of the Agreement as Mr. PhonebankGuy did, i.e., none at all.
And second, it appears to indicate that Mr. Trump, or at least his lawyers, think that its terms could actually be enforceable in a court of law. I don't see it; it's all smoke and bluster, as far as I can tell.