Trump v. Bannon et al.

Does Donald Trump have a cause of action for breach of contract against Steve Bannon? [UPDATED 1/9/18]

|The Volokh Conspiracy |

[UPDATE 1/9/18:

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.

Advertisement

NEXT: GAO Agents Tried 72 Times, Failed to Buy Guns on the (Normie) Internet

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. News this morning that the FBI has reopened the investigation as to whether Hillary had a pay-to-play scheme going during her gig at Secretary of State. I recall in Peter Schweitzer’s book about State being nice to an upscale diploma mill called Laureate University and Bill C. consequently raking in around $16 million for being an honorary something or other.

    The news report about the foregoing quotes Jeff Sessions as saying there is a very high legal bar to meet before the spectacular enriching of the Clinton Foundation can trigger an Independent Special Counsel investigation.

    Apparently, if you are a Republican president–elect that bar is only about two nanometers high and any Democrat-funded nasty Fusion GPS farce can trigger it.

    As far as non-disclosure agreements, to typify one as “ridiculous” would seem to suggest that all contracts are “ridiculous” anymore. In the end any promise to do or not do anything is just wishful thinking that will be hashed out in a highly politicized court system by a judge who is a political appointee after the whole business has been framed in the public mind in a certain way by PR folks and media partisans.

    When the Rule of Law becomes brazenly, flagrantly unreliable and capricious, is it still the rule of law?

    1. Trump quite openly campaigned on the idea of throwing Clinton in jail. That should be very worrying to you.

      Imagine Clinton or others in the foundation are guilty of wrongdoing. The prosecutor now has to overcome the added burden of perceived political interference. The executive branch tries to avoid commenting on criminal matters for a reason.

      As for the NDA, there are standards about what is enforceable in any contract, whether those exist for a good reason or not is irrelevant, you can’t make an exception so that Trump’s unenforceable NDA is now enforceable.

      1. He didn’t campaign on the idea of throwing her in jail without due process. He campaigned on the idea of subjecting her to an honest legal proceeding, which was pretty much guaranteed to put her in jail because you could see she was guilty just from public facts.

        Is it somehow illegitimate for somebody to campaign on subjecting their opponent to honest justice after they’ve been cleared in a blatantly rigged proceeding?

        “The prosecutor now has to overcome the added burden of perceived political interference.”

        Yes, as opposed to overcoming the burden of a rigged investigation leading to her not being prosecuted. Which I tend to think is a more difficult burden to overcome.

        1. Your argument–that someone who campaigns on an ongoing chant of “Lock her up.” is actually advocating due process–is bordering on idiocy. At least own it . . . Trump did not give a tinker’s cuss about giving Hillary any due process, and in this context, I actually don’t blame him.

          “Lock her up…if she is found guilty after a fair trial!” is not a pithy way to engage or enrage a crowd, nor does it fit neatly onto a bumper sticker, t-shirt, baseball cap, etc. What Trump wanted was a way to damage his opponent. That’s why, after the election, he sounded presidential, made a point of saying that she and Bill were good people, that he did not want to hurt her, and suggested that he had no interest in pursuing her. And, I think we all agree; if he was not himself being put under the microscope right now, he’d be saying the same thing. This is all a way to change the subject. Or, at least, to divide media coverage . . . some version of “Her too!”, I guess.

          1. “”Lock her up…if she is found guilty after a fair trial!” is not a pithy way to engage or enrage a crowd,”

            Which is why just said, “Lock her up”, and left the rest as implied. But it was clearly implied, except for people who apply the new Trump rule of grammar: Everything he says must be interpreted in the worst way available.

            1. Right. Is there anything Trump does you won’t defend?

              People can talk about “TDS” all they want, but the pro-Trump strain is far more deadly to honest thought than the anti-Trump version.

        2. Is it somehow illegitimate for somebody to campaign on subjecting their opponent to honest justice after they’ve been cleared in a blatantly rigged proceeding?

          Yeah, and where is the evidence of their having been a “rigged proceeding,” hm?

          Trumptards are fond of describing Hillary’s criminality as “obvious,” but I’m convinced these people just aren’t sufficiently familiar with criminal law, criminal process, or the alleged crimes in question. Yes, there are crimes that involve the mishandling of classified information. But these either require a mens rea that has never been publicly demonstrated or the mishandling of a kind of classified information we couldn’t, almost by definition, know was being mishandled (absent sufficient security clearance). Once you understand the nature and precise elements of the putative “crimes” in question, and given the public record of what Hillary did and when, it’s not at all surprising that Comey would have come out and said – in a highly negative and unprofessional press conference, the Trumptards always seem to forget – that the evidence just doesn’t support a recommendation to bring charges.

          1. “Yeah, and where is the evidence of their having been a “rigged proceeding,” hm?”

            Well, writing the memo exonerating here before the investigation was over has a bit of a “rigged” feel to it, don’t you think?

            1. Only if you’ve never written anything in a professional capacity your entire life.

              1. Oh, I have, and I wouldn’t write the conclusion of an investigation at the beginning.

                But there’s plenty of evidence beyond that.

                From start to finish the investigation of her email scandal was approached from a “how can we clear her”, not a “should we prosecute her” perspective. Handing out immunity agreements like candy, agreeing to destroy collected evidence, blowing off witnesses lying to investigators.

                When the FBI wants to get you, even a minor lapse of memory can be spun as obstruction of justice. When they don’t want to get you, you can lie your head off and they won’t care.

                1. From start to finish the investigation of her email scandal was approached from a “how can we clear her”, not a “should we prosecute her” perspective. Handing out immunity agreements like candy, agreeing to destroy collected evidence, blowing off witnesses lying to investigators.

                  The GOP selectively leaked conclusory statements about evidence they claim to have seen, without releasing that actual evidence… and you take this as “plenty of evidence?”

                  You need to learn to read more critically. Nothing in the story you’ve linked is new or particularly damning. There’s nothing in there about “handing out immunity agreements like candy,” “agreeing to destroy collected evidence,” and there was a single “witness” whose misstatement to the FBI – the guy who deleted the e-mails despite initially stating that he hadn’t – doesn’t implicate anyone else.

                  This is exactly how “fake news” propagates itself. Do you understand that? The GOP has selectively leaked information about its own investigations, framed in as damning a way as possible. Irresponsible journalistic outlets take those statements and present them for readers like you, who barely comprehend what you’re reading and just construe everything to suit your desired outcomes. And then you describe what you’ve read in extremely false ways – mischaracterizing what you’ve read in virtually every aspect – leaving it to more careful, more intelligent people to have to correct your lies, again and again.

                2. Oh, I have, and I wouldn’t write the conclusion of an investigation at the beginning.

                  Nothing was written “at the beginning.” A draft was written before the investigation was complete, which is quite common. It was, like all drafts, subject to change before the final version was published. There’s nothing wrong with that.

                  Kirkland pretends to have been a sportswriter at one point, I think; he could tell you that beat writers write the first draft of their game story before the game is over. On some occasions the game flips totally (like the Patriots-Falcons Super Bowl last year) and the draft has to be largely scrapped and rewritten. But most of the time they just tack on the final details and publish.

                  1. Kirkland pretends to have been a sportswriter at one point,

                    And, thank goodness, editors and paymasters at three daily newspapers (tTexas and Pennsylvania) and one of the two wire services fell for it.

                    I worked with a guy who got in trouble for submitting his story before a game was over (using an early facsimile machine into which one jammed a telephone handset); paying some kid a few bucks to add the final score to a pre-written lead and send it to the desk with that machine; and heading to a bar. He got caught when the trailing team scored late, and often enough to prevail. When an editor tried to contact the writer to inquire about the inexplicable story — the score was correct but the wrong team was identified as the winner — the kid answered the telephone and said, ‘sorry, he left here at least an hour ago.’ That’s what you get for a few dollars.

      2. “Trump quite openly campaigned on the idea of throwing Clinton in jail. That should be very worrying to you.”

        Why should this be any more worrying than an outgoing administration investigating the transition team of the President Elect?

        1. Due process.

        2. Why should an investigation by an outgoing administration that has received reports of foreign interference in our election process, as well as reports that a campaign may be operating in conjunction with said foreign interference, be “worrying” at all? What should be worrying is, when that outgoing administration presented its details to the majority leader of an opposing party seeking a bipartisan rebuke of said interference, said majority leader threatened to demagogue the issue in the press as partisan games. But that little tidbit remains the most ignored aspect of the entire matter.

    2. Guys like Michael Cook are the reason guys like Charles Harder write letters like the goobergrams recently sent to the publisher, author, and source of a book that has provoked a tantrum from Pres. Trump even before he doesn’t read it.

      1. I wonder why my earlier comment (critical of Michael Cook’s arguments, but entirely sans profanity) was censored by Reason? Not what I expected from this new site, and a disappointing introduction.

        To be fair, the site does say [in essence], “We can delete your comments for any reason.” Still, not exactly a champion of free speech, of free exchanges of dissenting opinions, etc..

        Would that make this site the opposite of libertarian???

        1. The opposite of libertarian would be going out and censoring other people’s sites, I suppose.

          But, “Never attribute to malice what can be explained by bad IT.”

    3. Guys like Michael Cook are the reason guys like Charles Harder write letters like the goobergrams recently sent to the publisher, author, and source of a book that has provoked a tantrum from Pres. Trump even before he doesn’t read it.

    4. “The news report about the foregoing quotes Jeff Sessions as saying there is a very high legal bar to meet before the spectacular enriching of the Clinton Foundation can trigger an Independent Special Counsel investigation.”

      A couple of things about that statement, one Sessions didn’t appoint a special prosecutor, he asked a US Attorney to look into the matter.

      Second and most important is how high should the bar be in investigating allegations of a cabinet officer monetizing their office? I don’t want too high of a bar when it comes to corruption in the cabinet. Even adjusting for inflation the payments to Clinton, which may have been related to actions his wife took as SOS, are about 3x the amount Albert Fall got in the Teapot dome scandal.

      1. Is that adjusted for inflation over 100 years?

        1. Yes. According to Wikipedia the inflation adjusted Tea Pot dome payout was around 5 million. So between the uranium One money and the Laureate cash, and the Qatar honorarium we are talking about at least 10 times the inflation adjusted Teapot Dome haul.

      2. What’s going to be interesting is how folks will be able to rend their garments over Clinton enriching herself in office, of which there remains no evidence through the course of many investigations over many years, while still being able to fix their collars and straighten their ties as they wave their hands at a president as he actually enriches himself while in office.

  2. This NDA would not even be remotely close to the most ridiculous ones I have seen and/or had to sign. Goldman Sachs lawyers come up with some pretty ridiculous stuff, IMO.

    In any case, a good lawyer will never “be ashamed of themselves for putting nonsense like this together.” They put whatever nonsense in a contract you pay them to negotiate into into a contract. Then they will tell you that regardless of what the NDA says – even if its reasonable- its typically pointless because you cannot unring a bell. Sure, you may be able to go after them for monetary damages, years later, subject to arbitration under English Law in Singapore (or whatever the NDA stipulates), but by that time the damage is done. After advising you of all the risks (including the risk that some provisions are thrown out as of unenforceable if it was ever litigated) … outside counsel (or inside counsel) will take the money and put the nonsense in the contract anyway.

    1. This NDA would not even be remotely close to the most ridiculous ones I have seen and/or had to sign. Goldman Sachs lawyers come up with some pretty ridiculous stuff, IMO.

      Ah … why do you sign the NDAs then? I’ve been given NDAs that have some rather silly statements in them as well. Object to them and and 95% of the time their lawyer will remove or change them. Its really not that hard.

      1. why would I sign an NDA? I like getting paid??? I want to see the terms of the deal?? I want to work at the White House??

        In other words: Whether their lawyer will remove or change them entirely depends on negotiating leverage. Sometimes I have it, sometimes I don’t, and sometimes I want to pick my battles because time is finite.

    2. Agreed. Writing a contract isn’t like filing a brief with a court. You can be as ridiculous as you want, as long as the client knows what they are or aren’t really getting.

      1. Sure. You can be ridiculous.

        But most of the time, at least in ordinary business transactions, a contract is an attempt to lay out the details of a deal already largely agreed to.

        If you are a hot-stuff lawyer trying to be a tough guy you can put all kinds of junk in, and the other party will walk away and the deal will collapse. Or else you’ll have to back down and the deal will be delayed and the other party will be PO’ed over unnecessary legal fees and there will be a lot of ill feeling that will interfere with the success of whatever is the goal of the deal.

        Or you can be sensible.

        WTF do they teach you people in law school?

        1. But most of the time, at least in ordinary business transactions, a contract is an attempt to lay out the details of a deal already largely agreed to.

          I’m sorry, were we discussing the typical approach to negotiating ordinary business transactions, or the outer limits of what a lawyer may permissibly do?

          While I certainly don’t disagree that, as a general matter, attorneys negotiating a business contract aren’t asking for ridiculous things and are essentially just putting a deal in writing. But ridiculousness happens more often than you seem to allow. I’m on a deal right now, for instance, where the counterparty isn’t being commercially reasonable on some irrelevant scheduling points, and my client has directed us, out of pique, to gather and schedule a bunch of contracts, in a process that has surely added at least 10 hours of legal time, spread across all of the client-side lawyers involved.

          WTF do they teach you people in law school?

          I learned astonishingly little of relevance to my current practice in law school. But I have, I supposed, gathered the ability to understand context.

          1. Actually, my point was that there is ridiculousness – too much of it. I’ve run into a fair amount.

            It was in response to your assertion that “you can be as ridiculous as you want.” I didn’t see anything about “outer limits” there, or the qualification that you were only talking about them.

            While I certainly don’t disagree that, as a general matter, attorneys negotiating a business contract aren’t asking for ridiculous things and are essentially just putting a deal in writing.

            And I was claiming that that is what they should be doing. Much of the time they do. Too often they decide to be the tail wagging the dog, and screw things up.

            1. It was in response to your assertion that “you can be as ridiculous as you want.” I didn’t see anything about “outer limits” there, or the qualification that you were only talking about them.

              Really? You’re debating this?

              Post’s post made an assertion about what “good lawyers” should be ashamed of, in an NDA like this, implicitly referring to certain of our ethical duties (though to which, one can only guess). Dwb68’s response to this was just to say that nothing about our ethical duties in the transactional context prevents us from asking for or drafting “nonsense,” provided that we advise our clients appropriately. And my response to Dwb68 was just to second the point.

              Your response, to me, was to re-cast the question of when and whether lawyers should be “ashamed of” the contracts they successfully negotiate with counterparties as being one about how good lawyers typically approach negotiations. But that framework is completely irrelevant here, where we’re talking essentially about adhesion contracts that were apparently executed without too much headache.

              So you’re off-base here. And you could have just dropped it, once you saw you’re wrong, but instead you’ve chosen to quibble with whether my specific comment provided you all the relevant context for the conversation. Talk about wagging the dog.

              1. Yes. I’m debating it.

                I didn’t see anything in dwb’s comment about “successfully negotiated.” A part of what I am trying to say is that extreme demands reduce the chance of success.

                So you’re off-base here.

                Sorry, but the opposing side doesn’t get to umpire the game.

                1. Yes. I’m debating it.

                  You don’t seem to recognize the irony in pursuing a low-value, irrelevant point – where you’re wrong anyway – in the course of making a point about what good commercial lawyers do, which I’ve never disputed.

        2. One should *NEVER* be ashamed of vigorously representing and negotiating for your client. Of course, you are right, I have been on the side where the counterparty pushed to the point where there was ill feeling and we stopped doping business with them subsequently. But that is more a matter of experience, situational awareness, and not overplaying your hand.

  3. Is there any way of viewing Bannon’s actions other than the one that Trump proposed, that Bannon has “lost his mind”? I mean at the very least why wouldn’t he say such things in his own book, so that at least he gets the profit? Is there anything in what he said that could be seen as advantageous to Trump? In that case he might have wanted to add credibility to it by also saying some things that were superficially harmful to Trump, and this whole thing could have been planned with Trump’s blessing. I don’t know what that would be, although the only statements that have been reported so far are the clearly salacious ones.

    Absent that kind of a scheme how do we reconcile it with his apparent view that he is still a Trump supporter? Even thinking that he was not speaking for attribution doesn’t work, since why cause such things to be printed at all if he is a Trump supporter? Maybe he has just flown too close to the sun and his perception has been warped.

    1. Wow, that requires tons of tinfoil I cannot afford.

      Sometimes the simplest explanation is the correct one: Bannon let his ego get the better of him and lost his mind. I think going after the Trump kids like Breitbart has been doing since Bannon got fired is completely insane. Even when I don’t agree with my kids, I defend them to outsiders and then chastise them in private. Having outsiders, even my mother in law, yell at my kids triggers parental instinct to circle the wagons and defend them. Even when they are wrong. Its stupid to think that going after someones kids is in any universe a wise idea. Roy Moore and this book were probably just the last straw. I’d have thrown Bannon overboard the minute he started attacking my kids.

      1. The Trump kids are adults who were actively campaigning and are involving themselves in policy making at the highest level.

        They are completely fair game.

        As for Bannon’s motives I’m guessing two things were going on.

        1) Bannon still has a lot of allies with the President’s ear and the Trump kids are probably the only voices in the WH who push back. Even if Bannon loses his own influence if he manages to sideline the kids he still comes out ahead.

        2) Reporters are really good at getting people to talk about things they probably shouldn’t.

        1. The Trump kids are adults who were actively campaigning and are involving themselves in policy making at the highest level.

          They are completely fair game.

          Sure they are fair game, but does the benefit from criticizing them even come close to justifying the cost to him in the damage to the Trump relationship?

          Even if Bannon loses his own influence if he manages to sideline the kids he still comes out ahead.

          Is it rational to suppose that publicly criticizing Trump’s kids, especially with crude insults, will have the effect of sidelining those kids?

          Reporters are really good at getting people to talk about things they probably shouldn’t.

          Yes, but when Bannon seemed to drop all caution whatsoever one has to wonder whether this author is really that gifted in putting people at their ease. For Bannon to forget himself to this degree seems incongruous with what one would expect from a rational, politically savvy person in his position who doesn’t want to lose the good regard of the President.

          1. “For Bannon to forget himself to this degree…”

            Do not, for a moment, discount the influence of alcohol.

          2. but does the benefit from criticizing them even come close to justifying the cost to him in the damage to the Trump relationship?

            Who knows. We are not, or at least I am not and suspect you are not, in the business of advising Bannon.

            It looks strange, I agree, but we don’t know what his objectives actually are.

        2. Kids can never be “sidelined.” They have your ear at dinner, over holidays, on family vacations, family events like weddings or Bar Mitzvahs, and innumerable other times. It’s seriously foolhardy and dumb to think family can be “sidelined.” Ever.

        3. “The Trump kids are adults who were actively campaigning and are involving themselves in policy making at the highest level.”

          Barron is, what? Eleven? I’m pretty sure you should at least exempt him from the “in season” list.

    2. Bannon was a mean gossip to a gregarious reporter? Zounds, he must be crazy!

      The speed at which you excommunicated Bannon from not just conservativism but sanity should give you pause.

      1. The speed at which you excommunicated Bannon from not just conservativism but sanity should give you pause.

        I didn’t say that this shows Bannon not to be a conservative. I just asked if anybody can come up with a rational reason for Bannon’s actions. You suggest that he just forgot himself and got carried away in comradery with this reporter, but it seems to me unfathomable that a person in Bannon’s position would allow such a thing to happen and not anticipate the likely consequences, at least if he were thinking and acting normally. Do you disagree?

        1. Getting carried away itself implies consequences are not being considered.

          Bannon, like many zealots, is also pretty good at ignoring consequences when he wants to.

          1. Perhaps not inconsequentially, so are drunks.

            1. Also a reasonable hypothesis.

      2. Most of us excommunicated Bannon from both conservatism and sanity years ago.

    3. “Is there any way of viewing Bannon’s actions other than the one that Trump proposed, that Bannon has “lost his mind”?”

      The better, and more pertinent, question is whether there is any way to view this other than has Trump lost his mind?

      Do hit job books come out against Presidents (and other national public figures) all the time? Sure. What do they do? Put out a neutral press statement denying them, and it goes away.

      It’s trite, but true, to invoke the Streisand effect. The book excerpts came out, made a splash, but then the initial coverage that started coming out was about Wolff’s credibility. So … like all of these (just think back to the last administration) this would have quickly died out. Instead, the book’s publication date was moved up, and people are focused on these issues (not to mention the idea of a sitting President trying to stifle news … always a good authoritarian look).

      Of course, you almost have to admire the way the Overton window has shifted. You have a sitting President siccing his lawyers on people because he doesn’t like bad press, and that’s … what, meh? Other than the die-hards, like Michael “Back to Hillary” Cook, that should be a little concerning.

  4. Even if sections of the non-disclosure/non-disparagement agreement are unenforceable, or unenforceable under certain circumstances, that doesn’t make the agreement unenforceable in this context, i.e., a high-level employee openly and publicly disparaging the campaign on which he worked and the candidate himself, within 18 months of the events in question. We will leave for another day the question of whether Mr. Bannon may express his opinion of the architectural merits of Trump Palace.

    1. … and: even if sections of the non-disclosure/non-disparagement agreement are unenforceable, it may still cost a lot of money and time for Bannon to litigate to get a judge to agree they are unenforceable.

    2. “that doesn’t make the agreement unenforceable in this context, i.e., a high-level employee”

      Of course, but Post can’t help himself when comes to Trump. The amp must be set on 15 or so.

      1. Oh, come on, while Post clearly suffers significant TDS, this piece wasn’t nutty.

  5. Apologies if I’ve totally missed something here. Of course the President’s lawyers would never want to actually proceed with a suit for breach of the NDA, or libel, because it would open them to discovery. And it seems like the President’s lawyers rely on the fact that they are the theoretical plaintiffs to make sure that they never get involved in an actual suit including a defendant with the right to discovery; the plaintiff controls the filing of a complaint, so they can avoid a suit by simply not suing. But isn’t the cease and desist letter sufficiently threatening to create DJ jurisdiction? Why can’t Henry Holt & Co. walk into court tomorrow and sue for a declaratory judgment absolving Holt of liability for libel? And if Holt did so, wouldn’t they be entitled to discovery about every fact that the President has disputed? What am I missing here?

    1. What’s the relevant discovery for a non-disparagement claim? We’re not talking libel or slander here, the truth is not a defense when you’ve signed a contract with a non-disparagement clause.

      1. Huh? Bannon signed the contract with the NDA/non-disparagement clause, not Wolff.

        (Oh, also, even if Bannon were the one being sued, there’s relevant discovery as to damages.)

        1. Yes, and so Bannon is not liable for the book, but he may be for talking to Wolff. I suppose you could go after Wolff on some theory, encouraging somebody to violate a contract, or something like that.

          But, mainly, if the media can throw everything that comes their way at the wall, in the hope that some of it will stick to Trump’s detriment, why can’t Trump throw stuff at the wall, too?

  6. The contract is between a company wholly owned by Donald Trump and a former employee. Assuming that the non-disparagement clause would be valid in any normal year, could it be enforced while Trump is President of the United States and the family are public officials? That seems to be a First Amendment issue.

    1. It should make zero difference whether the contractor is President or not. A contract is a contract.

      Note on discovery: It’s risky suing for defamation, because then there has to be discovery on whether the statements are true. For tortious interference with contract, I can’t see what Trump could be asked for in discovery except for a copy of the contract, and, I suppose, any documents that might exist releasing Bannon from the contract. The truth of what Bannon said is irrelevant, I think (though, interesting question, what if everything Bannon said is a lie? THen Bannon hasn’t actually disclosed any information about the campaign, just lies, and maybe he hasn’t violated the agreement.)

      Another question, about the pleadings. Must Trump present evidence that Wolff KNEW about the nondiscoluare agreement, at the pleadings stage? Or can he just assert it as likely and hope he finds osmething in discovery?

      1. No, one need not present evidence at the pleading stage, but whether Wolff knew about the NDA is irrelevant. Unless the claim is that Wolff paid Bannon to talk to him, Wolff has nothing to worry about wrt the NDA.

  7. Back to Hillary, she is an old, old hand at business arrangements that have the appearance of impropriety between a government executive and anyone outside of government who wants to do something nice for them. The legal key here is to make absolutely, stone-cold sure that quid pro quo can never, ever be proven.

    And that is why the new Secretary of State understood from the get go she would need a private server. You can’t hash out deal making in a venue that will someday be subject to FOIA requests or government records transparency rules. That is why the 30,000 emails had to go missing and even the hardware she owned had to be scrubbed and smashed.

    1. Needs moar Benghazi.

    2. Wiped with a cloth of course! 😉

    3. We all knew this would somehow circle around to Hillary. “But what about Bengazi?!?” “Fraud!!!”

      Can Obama’s birth certificate be far behind?

      I take a perverse pleasure in watching an intellectual whore like Michael Cook twist into pretzels, rather than say, “There’s a lot of troubling things about Trump and his campaign. I hope the investigation shows no serious misdeeds…and certainly no intentional misdeeds.” That way, I could see our good Mr. Cook as partisan, but one with a few shreds of integrity and character. I can hope for that. But expecting it is a different matter, and doing so would show me to be as hopelessly delusional as Mr. Cook.

      1. The deplorables know this is their one and only, final shot. They’ll go down with the ship (clinging to it, one might say).

        1. I’d say November 2016 was our final shot at Hillary, she’ll never recover from that one.

          While I do want the server investigation reopened, and all the possible quid pro quos looked into, I dont see any need to send a brain damaged elderly has been to jail, even if everything I suspect is true.

          But perhaps following Obama Administration practice a 7 figure disgorgement from the Clinton Foundation in the form of contributions to Judicial Watch, various Tea Party branches and the Federalist Society might be fitting.

    4. “The legal key here is to make absolutely, stone-cold sure that quid pro quo can never, ever be proven.”

      I thought the legal key here was to make absolutely, stone-cold sure that the AG was your buddy, so that the fix would be in.

  8. This is a lot of fun and all, but lets not go so far as to call Wolff a journalist. This is the same as those books about Hillary throwing ashtrays and treating the Secret Service like servants. Unsubstantiated gossip.

    The prior restraint on the book is sad but expected.

    I look forwards to shining some light on the function and reach of NDAs.

    1. Agreed, he’s not a “journalist”; According to today’s accounts, even he doesn’t think his book is fully accurate, he was of the opinion that at least some of his sources were lying to him.

      And yet, he didn’t warn the readers of this. So, not a journalist.

      1. “Didn’t warn the readers of this” unless they read the part of the book where he explained that, I guess you mean.

        The fact that some of his sources were lying to him doesn’t mean he isn’t a journalist; the lies that people tell are newsworthy too.

        1. They may be newsworthy as “These are the lies this guy is telling.”, but they are not newsworthy as, “Here are statements, some of them may be untrue, but I’m not telling you which ones.

        2. He’s a reporter – a gossip reporter. With scanty sourcing like that I’m not going to call him a journalist.

      2. “And yet, he didn’t warn the readers of this. So, not a journalist.”
        He did warn people; it’s in the preface.

        1. See above: “There are some lies in this book, but I’m not telling you which parts are lies.” is not standard journalistic ethics.

          1. Apparently only journalists are the ones expected to conform to longstanding, historic norms.

            1. But only in a normative sense of “expected”, nobody actually expects them to so conform in the sense of anticipating it.

              1. I guess irony is lost on you.

  9. Given the constant attacks against Trump and all his works before and after the election, I’m not so sure the NDA is all that ridiculous; shouldn’t we consider the possibility that Trump had a better idea of his future needs than Post did?

  10. Presumably there’s a severability clause, and a court would reform the contract to include only what’s legal.

  11. How about telling us whether the relevant part of the agreement can be enforced or not? The post blathers on about the unenforceable parts without giving the reader any non-obvious legal analysis. The comments are better, but I expect a blog post to at least try to address the central issue it’s about.

    1. “expect a blog post to at least try to address the central issue”

      Not from a Post post.

      [which is no longer on the Post]

    2. If you look to the link of his last blog post, it has the volunteer agreement. We don’t know if Bannon has the same, similar, or completely different agreement.

      And it is a terribly drafted one. It doesn’t have, for example, a severance clause. It also has a one-way arbitration clause, which I would flag as a major concern (although I haven’t been following New York law for some time). It’s just a truly bizarre piece of work.

  12. In the current American mindscape you can not isolate and dissect Trump’s legal problems without in the same breath giving Hillary a completely equal examination. Hillary and the Donald are as inseparable as Romeo and Juliet, Tristan and Isolde, Romeo and Juliet, Bogart and Bacall, Laurel and Hardy.

    1. It’s completely possible to that; however, Trumpites will bitch you out if you don’t give him the same treatment she got. They whined last year when she supposedly got off easy and DOJ was broken, and now they are whining because the system got fixed and their guy isn’t so lucky.

    2. You have given zero reason why Hillary and Trump have anything to do with each other.

      Citing the ‘American mindscape’ and analogizing to a bunch of old duos doesn’t exactly make you case.

    3. Hillary is not president. She lost. “But Hillary!” in all its myriad forms is deflection, plain and simple.

      Get over it and focus on the individual who actually has the power and mental instability to actually harm our country going forward.

      Hint: it’s not Hillary.

  13. As a side issue, dwb68 tells us that,

    a good lawyer will never “be ashamed of themselves for putting nonsense like this together.” They put whatever nonsense in a contract you pay them to negotiate into into a contract.

    And you wonder why people hate lawyers. You get a job offer you like, want to take it, and then are hit with ludicrous NDA from your prospective new employer. Even if you suspect it’s junk, you may well ask a lawyer – ka-ching, ka-ching – about it, and be told “It’s probably not enforceable, but you can never be sure.”

    In other circumstances I have had some experience trying to negotiate with an overreaching lawyer. It’s no fun, and, frankly, doesn’t accomplish much for the client.

  14. IIRC, another commentator has pointed out that if POTUS does sue Bannon (on whatever grounds), he would be opening a can of worms in discovery. Would calling POTUS crazy, and having him sue for libel, require him to undergo a psychiatric evaluation to determine his sanity? I doubt POTUS wants to go there 🙂

    1. I think you’re being tongue in cheek, but in case you’re not, calling someone ‘Crazy’ is not actionable.

      1. No, but I believe publicly tearing into someone with whom you have an NDA nullifies it because they can’t “legally” defend themselves.

      2. Unless maybe you’re a psychiatric professional. I think it can be actionable in that instance.

        1. I don’t think “crazy” is an actual psychiatric diagnosis.

          1. Even without being a diagnosis, an opinion that implies knowledge of facts can give rise to defamation claims about the purported facts. There are probably cases from some jurisdiction dealing with this particular issue (“crazy”, as used by a mental health professional, and whether that sufficiently implies factual knowledge as to give rise to a defamation claim). I’m not about to put in the time and effort to look for them.

  15. There’s little doubt that the book will have Liberals and the Pink Hatters at the edge of insanity as they call for Trump’s impeachment; however to many folks across the country they will look nuttier than a can of Planter’s.
    It will cost them seats in the midterms.

    One has to be pretty deep in a state of denial to not acknowledge that Hillary Clinton should have been charged with something, that the FBI is covering something and the Clinton Foundation was raking in cash while she was at the State Dept. That’s called Pay for Play.

    Many Liberals voted for her anyway, because a little corruption is fine as long as she did the right thing for the Cultural Issues.

    I don’t expect HRC to be charged with anything. I don’t expect the FBI or SC to find any proof that Trump colluded with Russia, although I do expect Trump or someone in his family will be charged with perjury. Not unlike Scooter Libby. They want blood and will mine it. In the meantime the NY AG will be sharpening his pencil on money laundering charges

    All in all, this is good for the country, as it opens up many things that needed attention, and let voices be heard who were silent or ignored.
    Like it or not, Trump is good for the economy, and his FP just might work to bring peace to some battered nations.

    What will be interesting, is what history says twenty years from now, fifty years from now about the whole debacle.

    #MAGA

    1. Twenty years from now, no one will admit to having voted for Trump.

      It will be like the racists of a half-century ago. No one will admit today to having been a racist during the civil rights era, let alone a violent, vicious bigot. Those blacks must have been beating themselves on that bridge in Selma, and Chaney, Goodman, and Schwerner must have killed themselves, if you believe today’s alibis.

      I expect a similar course with Trump.

      1. It was all them damn illegals! They voted for Trump! Blame them!

      2. Twenty years from now history may show a marked improvement under the Trump admin for minorities in the country when it comes to jobs, and opportunity.
        Data as it unfolds in the present is showing that Hispanics are starting small businesses, that the unemployment among Blacks is at a record low, and wages are rising. I don’t think any of them are beating themselves: however, it does appear that you’re projecting Arthur.

      3. Heck, I wasn’t admitting to voting for him the day after election day; I spend that Tuesday unexpectedly in a funeral parlor, sadly.

        But I’ll freely admit I would have voted for him if I’d had the chance.

        You know, I’ve made plenty of mistakes in my life, There’s an old saying in regards to autobiographies, that any man’s life looked at from the inside is nothing but a long series of mistakes. It may be that supporting Trump will turn out to have been one of them, but if it does I’m not going to pretend I didn’t.

        1. Yes, at the moment the more evidence Trump is bad the more certain people rally around him. It’s an fundamental tribal impulse.

          But once the tribe has moved on…I expect it’ll be like Nixon – only a few people on like Free Republic will say ‘it was a conspiracy of the Washington Post!!’

          1. It’s more a matter of, “The more Trump’s enemies go off the deep end, the more certain people rally around him.” Given that actual evidence that Trump is bad is rather lacking.

            Has an offensive manner, I’ll grant you. Somewhat boorish, given to braggadocio, fails to realize that the Whopper is vastly superior to the Big Mac. These are all failings.

            But, “bad”? In more than a, “Elected as a Republican, he failed to implement the Democratic party’s platform” sense? No, I’m not seeing evidence of that.

            Rather, I’m just seeing it taken as a given, an unshakable premise which drives how all events are understood.

            1. No one properly faults a Republican president for failing to pursue Democratic priorities, and it’s a little silly for you to pretend that’s what this is about.

              No, Trump fails by any reasonable conservative’s standard. You celebrate the “tax cut,” but you ignore its many policy failings, its new loopholes, its radical re-shaping of incentives for people across the economic spectrum, its scrambled-together pay-fors that still fall well short of paying for lost revenue, etc., etc., all of which were a direct product of the way it was rammed through. We could have gotten a good, simplifying, cost-effective tax cut. Why couldn’t they take a few more months to craft something thoughtful?

              It was because Trump needed a “win.”

              1. “No one properly faults”. Yes. But many people still do improperly fault. And that’s why you regularly see postings from liberals who aren’t highly partisan (e.g., Josh Barro) pointing out that someone else’s complaint is about something that any GOP Congress or President would do, and that the complaint amounts to the GOP not being Democrats.

            2. ACA isn’t repealed because Trump failed to show any leadership on getting that done. He alienated McCain, but beyond that he gave congressional Republicans no reason to rally to his side, leaving it instead to the congressional leadership to work it out. Now, instead of simply putting a reform into place, he’s actively seeking to cause market chaos as an indirect means of building political capital.

              He pulled out of TPP, thereby granting China increased leverage in the global economy and its regional politics. He is alienating our longstanding allies in Europe and cozying up to autocrats who know how to play him, like Putin, Sisi, Xi, Duterte, who have no interest in furthering American interests. He has willfully abandoned any leadership role in limiting carbon emissions – leaving the future of those measures in the hands of Europe and the rest of the world. Meanwhile he is spiking American credibility in the Israeli/Palestinian conflict, clearly coming down on the Israeli side, with no clear plan for what will surely follow (i.e., a one-state solution).

              The only way conservatives can defend Trump with a straight face is pretend that he has done what he hasn’t done and ignore everything he has spectacularly failed. He’s just a bad president, by any standard.

  16. Clinton and Obama, living rent-free in Trumpkin minds.

    1. I can confirm that living rent-free in Trumpers’ minds is not so bad.

    2. The only thing about former President Obama’s legacy that “lives in my mind” is the fact that his destroying a sovereign nation (Libya) has directly led to black Africans being sold into slavery (I believe CNN did a piece on this recently). I wonder what opinion these modern day literal slaves have of America’s first black president?

      1. Not that slavery is a good thing, but are you really stuck on ~250 being forced into the practice? That’s even more foolish than anti-gun politicians doing their thing because 0.0047% of the US population dies from gun violence each year.

  17. t 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.
    >>>>>>>>>>>>>>>>>>>>>>

    I agree! No political/famous figure in history has ever tried to prevent a critical book about them from coming out! These newfangled terms ‘libel’ and ‘breach of contract’? They must have been invented by psychics who foresaw the rise of Trump but didn’t bother to tell all the surprised Hillary campaign minions and news anchors.

    1. Well, if other celebrities have done something, that means it’s OK if President Trump does it! Especially when it comes to the Constitution!!

      Not looking forwards to the upcoming sex tape.

    2. Amos,
      Can you give us a few examples of recent politicians who tried to prevent the publication of a critical book?

      Don’t need to flood us with examples…2 or 3 should be sufficient. Thanks in advance for that helpful info.

      1. How about trying to prevent critical movies from being advertised? Would that do?

  18. An old statement rings true here: “if you had a case, you’d have filed it.”

  19. I love the fact than not only did the publisher not cave, they released the book early.

    Trump might be dumb enough to sue but his lawyers aren’t.

    Though Trump’s deposition would be fun.

  20. A question to more experienced lawyers than me in this area.

    If Trump sued Bannon would Bannon be free to reveal more information or would that increase damages?

    1. Bannon can reveal anything he wishes about his (and Pres. Trump’s) service in public office.

      That should be more than adequate in this context.

      Trump’s bluster in this circumstance is made all the more remarkable by the point that he seems certain to be the combatant with the most to lose.

  21. Did Trump’s lawyers not advise him of the Streisand Effect?

    1. His lawyers are the one directly releasing all the legal demands. At this point its dumb for anybody to be surprised at Trump spazzing out on Twitter. Trump is trump, he’s been doing this for years. Expecting him not to tweet at this or that annoyance is like expecting a dog not to take a leak on a fire hydrant. I sure he full well knows the effects by now but he doesn’t care.

      1. No one is surprised.

        It still sucks though,

        Telling that our President must be framed as a beast in order to be defended these days.

  22. “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.”

    Only if Trump sues for defamation. If he limits himself to the alleged breach of the confidentiality agreement then the issue of truth or falsity may be sidestepped. But what would the damages be?

  23. If the person signing this document is a “Volunteer”, what is the consideration that makes this a contract? What was promised to the “Volunteer”? Also, you lost me on how Bannon figures into this. Was he a Volunteer who was later hired? If so, was it that his employment contract explicitly incorporated his Volunteer “contract”? Or is it just that we imagine his employment contract had similar provisions. But from a legal studies point of view, I’m mainly interested in the Volunteer contract.) Obviously the most silly part is the “forever” part, as there would have to be something commensurate with “forever” on the other side in order to be reasonable. And being able to say “I got to Volunteer and work for free on the Trump campaign” doesn’t sound like any kind of valuable consideration, even if it is some sort of experience credential.

    1. Sure, but at the same time, you are a volunteer. Don’t like the terms? Don’t volunteer.

  24. David Post thinks the NDA is unenforceable, while Stephen Carter (Yale) thinks it is ( see Bloomberg Law article “Trump Has Upper Hand in Legal Fight With Bannon” Jan 5 2018):

    “But when non-disparagement clauses are included in employment contracts or separation agreements, they are enforced more or less routinely.”

    Bannon is a former Goldman Sachs investment banker. He knows how the game is played (I am sure he had his big boy pants on, as they say), & likely had his own lawyers review it. Bannon was getting compensation plus other privileges for employment, so I tend to think the non-disparagement contract is enforceable. Getting as much “ridiculous” stuff in a contract is how the game is played.

    That said, you still can’t unring a bell, and damages might be hard to prove. Is what Bannon/Wolff wrote so different than all Trumps bad press of unfitness for President?

    Maybe there are no damages because the NDA & non-compete contemplate Bannon as campaign employee: non-compete ends “the date the current U.S presidential election cycle is over.” Bannon waited until after inauguration to publish the book. If the NDA is limited to the campaign, and Trump won, are there any damages?

    I am persuaded the contract is enforceable. I am not persuaded there are damages. As to the first amendment claims, tell-all books are a dime a dozen in Washington, and largely protected speech. Legal threats to prevent tell-all books about politicians are also a dime a dozen.

    1. DWB: You’re operating under a mistaken impression. Bannon didn’t write this book in whole or in part. Wolff did. It’s not a Bannon tell-all; Bannon was simply one of hundreds of sources (the best one, maybe, for entertainment purposes) with whom Wolff spoke.

      1. Hard to say. I tend to believe reports that Bannon signed off on Wolff access and it was a Wolff/Bannon project. Bannon indicated many times early in 2017 he was writing a book. I tend to think Wolff was Bannon’s “insurance policy.”

        But you are correct, we do not know what the real nature of the agreement was.

        Regardless of the agreement (or lack thereof) between Bannon and Wolff, the overall point of my comment is that while I am persuaded the Bannon contract is enforceable, I am not persuaded there are damages.

        1. Yes, there are reports from the White House that Wolff only had access to the White house because Bannon was inviting him in, so “I’m just one of many sources!” probably won’t cut it.

          1. Does it alarm you that so many of Trump’s “defenses” amount to, “We were too stupid to know better!”

            I mean, no one who knows Wolff’s record – including, say, Rupert Murdoch – would be stupid enough to tolerate giving him the kind of access he had. Suggesting that it was all some plot by Bannon doesn’t exactly get them off the hook. It just means they were both gullible and completely inattentive to the open machinations of an inner-circle adviser.

            It doesn’t inspire a lot of confidence in the holder of an office who must, above all, be able to exercise extreme discretion in handling the information flowing through his office. Though, given that we’re talking about the same guy who blabbed highly sensitive information about Israeli intelligence assets in order to impress the Russians, perhaps we shouldn’t be surprised.

    2. There is a good lesson in comparing the two articles. Carter comes across as performing reasoned analysis; Post comes across as engaged in unhinged ranting. The enforceability of non-disparagement agreements is not my field, so I have no independent opinion, but based solely on these articles, I conclude that the agreement is enforceable.

      1. There is a good lesson in comparing the two articles. Carter comes across as performing reasoned analysis; Post comes across as engaged in unhinged ranting.

        Since the two analyses address entirely two different kinds of legal questions, one must only surmise that your only basis for deciding between the two is the quality of rhetoric used. That is, you’re a moron.

    3. David Post thinks the NDA is unenforceable, while Stephen Carter (Yale) thinks it is ( see Bloomberg Law article “Trump Has Upper Hand in Legal Fight With Bannon” Jan 5 2018):

      It honestly drives me a little nuts that there are people leaving comments like this without doing the barest minimum analysis of what they’re reading.

      Carter’s op-ed is almost irresponsibly detached from the actual facts here. He addresses a very specific question – whether the First Amendment provides any bar for the enforcement of non-disparagement agreements – and takes for granted the assertions made in Trump’s cease-and-desist letter. He does not venture, as David does, to say anything about the enforceable scope of non-disparagement agreements or whether the one actually in question here is reasonable enough to be enforceable. Like most law professors, he simply frames the question such that he can answer it without having to do more than crack open a case book. As a result, he provides absolutely no reason to express skepticism about David’s analysis, which makes no argument that the non-disparagement agreement would be unenforceable due to the First Amendment.

      1. If you read Carter carefully, he does address the enforceability. “But when non-disparagement clauses are included in employment contracts or separation agreements, they are enforced more or less routinely. The reason isn’t that judges don’t understand that the clauses might be abused. The reason is that the employee who agreed to the deal is bound by his own free choice.” “If an employer and an employee are bargaining at arm’s length, the employer’s insistence on such a clause will result in higher compensation for the employee.”

        As for: “Like most law professors, he simply frames the question such that he can answer it without having to do more than crack open a case book.”

        The secret reality of the judicial system is that many judges are results-oriented. Proper framing of the question is about 70% of the battle.

        1. If you read Carter carefully, he does address the enforceability.

          And I’ve acknowledged this. But he addresses enforceability of non-disparagement agreements only generally, in response to the question of whether the First Amendment might bar enforcement. He says nothing about the possibility that Bannon’s statements might be beyond the bounds of “reasonableness,” where a non-disparagement agreement would be unenforceable as a question of contract law.

          The secret reality of the judicial system is that many judges are results-oriented. Proper framing of the question is about 70% of the battle.

          I realize. Judges and law professors have that in common.

  25. If Trump is “dragging us in the depths” where were we with Obama who weaponized the IRS, CIA, FBI, DNI, DOJ, EPA, BLM against the American people, doubled the debt and sent billions in taxpayer wages to terror supporting countries that hate us all while claiming working Americans are racist bitter clingers?

    1. Carry on, clingers.

      So far as your lousy educations, bigoted souls, striking gullibility, and can’t-keep-up communities can carry you, anyway.

  26. Is there any example of a sitting president suing a private citizen as a plaintiff in a civil action? Clinton v Jones shows that president can be sued while in office and of course can affirmatively prosecute against another. But has there been? And not in a separation of powers suit…

    How about any elected individual bringing a libel claim — I’m betting there are a number of these.

    Finally, I found Professor Carter’s Bloomberg article interesting — upholding the police abuse non-disclosure/disparagement clause is surprising to me. I understand enforcing those generally in commercial contracts and settlements, but not when the settlement involves a public entity. I wish that the Overbey case had been appealed — it strikes me as incorrect when it tried to balance the public policy considerations of the interests of settlements against the public policy of sharing public misconduct. My view is that public policy should strike those clauses as unenforceable by a government body (I can see carve outs for personal information of individual government officials perhaps, but not general facts).

  27. Can any of you come up with a faster way to delegitimize Wolff”s book? First, Trump guarantees it will be the number one most talked about thing in the media. Then, he uses his opponents own words to discredit the author. The author himself admits to knowingly using what he believed to be lies. If he included the lies of others, why would he just not make up his own set of lies to include?

    I never saw Bannon as Trump’s confidante or close political adviser. He seemed to be what we called a knee breaker. Like Carville or Rove. Screw with his boss, and this guy will leave you bleeding and crying in the gutter. Bannon being on the outside and appearing to be antagonistic to Trump gives the WH a lot of deniability. Bannon pokes at Trump’s kids, but he still is going after liberal targets with crowbar in hand.

  28. Concepts like contract of adhesion, vid for public policy, etc. haven’t faired very well among libertarians, and have often been attacked Volokh Conspiracy posts. It’s interesting reading a post in the Volokh Consoiracy that not merely accepts these concepts, it treats them as givens to be expounded on.

    I think two of the weaknesses of libertarianism are that it treats government as the principle evil, and readily distinguishable from parties. In oligarchies, plutocracies, and kleptocracies, both premises strike me as highly questionable. One of the weaknesses of libertarianism is its theory of equal bargaining inower and absolute freedom of contract prevents government from restraining oligarchs from inducing people to contract away their rights if they want to obtain jobs, bread, and other basic necessities from de facto monopoly or cartel suppliers. One is reminded of the debt peonage of sharecroppers which kept getting defended on libertarian principles. Not libertarianism’s finest hour.

    1. “I think two of the weaknesses of libertarianism are that it treats government as the principle evil, and readily distinguishable from parties.”

      It’s somewhat difficult to look back at the history of the 20th century, and not conclude that government is the principle evil in the world, though it may in some times and places drop to second place. But only because the people in those times and places weren’t stupid enough to trust it.

      1. How many people in the world have been sickened or killed by industrial pollution since the advent of the Industrial Revolution, do you think? How many people have suffered or died due to the marketing practices of consumer products companies purveying misleading information about their products’ health effects? And, uh, do you think it’s the government that’s responsible for the epochal environmental degradation we’re living through?

        Libertarians love to cite Hitler and Stalin, and to be sure there’s no denying their crimes or the role that state power played in enabling them. But citing just humans murdering humans ignores the profound impacts that unregulated market actors have also had on the course of human history.

        1. “How many people in the world have been sickened or killed by industrial pollution since the advent of the Industrial Revolution, do you think?”

          A tiny fraction of the numbers whose lives were extended by the advances they ushered in.

          “How many people have suffered or died due to the marketing practices of consumer products companies purveying misleading information about their products’ health effects?”

          Probably fewer than who suffered and died as a result of incorrect information propagated by governments.

          “And, uh, do you think it’s the government that’s responsible for the epochal environmental degradation we’re living through?”

          We aren’t living in a period of epochal environmental degradation, so no, I don’t blame the government for that.

  29. Not as confident as Post in the unenforceability of confidentiality provisions. Potential candidate Winfrey’s corporate confidentiality agreement was found to be reasonable by the Illinois court of appeals, while similar provisions have been found to be unreasonable if the confidentiality provisions are in essence non-compete provisions that would materially inhibit further employment.

  30. I’m curious: my understanding of contract law is that a contract has to be an exchange of value. The volunteer is giving up something of substantial value (the right to mock Trump or any member of his family, forever). What is he getting in return?

    Is gratuitous contract a contract at all?

Please to post comments

Comments are closed.