President Trump has now sent “cease and desist” letters to former White House Chief Strategist Stephen Bannon, author Michael Wolff, and publisher Henry Holt & Co. over comments Bannon made in a forthcoming book, Fire and Fury: Inside the Trump White House. According to the cease and desist letter, comments Bannon made to Wolff, excerpted in a New York magazine article, violated a non-disclosure agreement forbidding Trump’s staff from making disparaging remarks about the President, his family, and the Trump campaign. Bannon made comments to Wolff that, among other things, labeled a meeting between Donald Trump, Jr. and the Russians, “treasonous,” and “unpatriotic,” and called Ivanka Trump, “dumb as a brick.”
President Trump and his attorney believe he is entitled to monetary damages and injunctive relief for Bannon’s disparaging and libelous comments. Injunctive relief would block further release of Fire and Fury and prevent Bannon from making further disparaging comments. The analysis of whether President Trump can stop publication of disparaging comments from Bannon involves two parts (1) does Trump have a meritorious claim, and, if so, (2) what are Trump’s remedies – i.e., can he block further release of the book.
Let’s start with the second part first. Right now, Trump wants to block release of the information as quickly as possible. He thus would need a preliminary injunction, before resolution at trial – against both Bannon and the publisher of Fire and Fury. To receive a temporary injunction from a court, Trump would have to show “likelihood of success on the merits” at trial. In cases of libel or slander, temporary injunctions before a resolution at trial are generally not awarded and considered unconstitutional “prior restraints” – the worst type of chilling of speech. However, in cases of nondisclosure agreements, where a speaker has personally promised secrecy in consideration for other benefits, courts may allow preliminary injunctions to prevent disclosure of confidential information. President Trump will bear a heavy burden to prove that he is likely to succeed on the merits, and he must also demonstrate that the non-disclosure agreement is enforceable.
To be enforceable, a non-disclosure agreement must not be overly broad; the President must have made reasonable efforts to keep the information secret; and there must not be a large disparity in bargaining power between Bannon and Trump. Contracts can also be deemed unenforceable if they violate public policy, although there is a presumption of freedom of (and thus enforcement of) contract in most cases. A court may well find that President Trump’s non-disparagement clause is void as against public policy, due to the public policy of allowing the public access to truthful information about important public events, and overly broad, due to the sweeping prohibitions on disclosure to which all members of his staff had to agree.
On the other hand, the countervailing public policy in allowing those running for public office latitude to conduct some of their conversations with staff without fear of disclosure to the public, plus the general presumption in favor of freedom of contract, may render a non-disclosure agreement enforceable. Bannon did, after all, freely sign the non-disclosure agreement in return for substantial benefits. If Trump’s non-disclosure agreement against Bannon is enforceable, Trump may be able to get a preliminary injunction against Bannon, from further making disparaging comments. My guess is that a court will not allow this type of prior restraint before trial, especially given the President’s role as a public figure and the sweepingly broad scope of the non-disclosure agreement.
Trump is also unlikely to receive a preliminary injunction against the publisher, Henry Holt & Co., although it is possible. As mentioned above, preliminary injunctions are generally not awarded before trial in cases of libel. Preliminary injunctions against publishers can be awarded in cases of copyright infringement, or cases where the publisher is actually violating a plaintiff’s (here, Trump’s) legal rights. Although the publisher never signed a non-disclosure agreement with Trump, Trump is claiming inducement to breach of contract; thus the publisher may have violated Trump’s rights in a way that could warrant a preliminary injunction. An inducement to breach of contract claim generally requires that Trump prove that the publisher intentionally induced Bannon to breach his contract without justification – and justification can include a good faith protection of one’s own legal interests. The inducement to contract claim does not seem strong enough on the merits to justify a preliminary injunction. Preliminary injunctions are discretionary decisions, and the trial court is given great leeway to balance the equities and the public interests.
Regardless of the disposition on the preliminary injunction, if Trump won at trial, Bannon, the author, and the publisher might be responsible for substantial damages and even a permanent injunction barring future publication. Thus, turning to the first part of our analysis, all parties sent the cease and desist letter must now consider whether Trump has claims that are likely to be availing at trial before deciding what to do at this juncture.
Trump’s claims against Bannon for violation of the non-disclosure agreement seem solid, but only if the agreement is deemed enforceable. The claim of inducement to breach of contract against the publisher is weaker, because Trump will have to show that the publisher induced a breach of a valid contract and had no legal justification for doing so.
The claims against both Bannon and the publisher for defamation are still weaker. First Amendment protections require that public figures bringing libel suits allege that the information published is not just false, but made with reckless disregard for the truth. Statements of opinion, such as that Ivanka is “dumb as a brick,” can be libelous only if they imply facts that are provably false (for example, “In my opinion, Trump is a cheater” can be proven true or false by considering whether Trump has been unfaithful to spouses). The statement that Ivanka is “dumb as a brick” is not just pure hyperbole, which no one would take as literally true, but also as pure, subjective opinion on which reasonable minds can disagree. The statement that Donald Trump Jr.’s meetings with the Russians were treasonous comes closer to facts that could be defamatory (as treason is a crime with some legal content), but given that an ongoing investigation is currently resolving something similar to that question, a court is unlikely to find that statement to be maliciously false, even if it goes beyond subjective opinion into provable fact.
Trump often threatens lawsuits over potentially libelous statements, but does not often follow through on those threats. Generally speaking, threatening to sue for libel serves only to increase popular attention and spread of the information – a sometimes unfortunate side effect for those truly seeking redress for false or misleading statements, or those who validly wish to invoke their right to contract for a non-disclosure agreement. Trump may be seeking to vindicate his reputation, and to enforce the non-disclosure agreements he believes are valid – or he may be motivated more by embarrassment, distress at betrayal, and anger. My guess is that Bannon, Wolff, and Holt & Co. are neither going to apologize nor are they going to block further release of the book, and they are on steady, if not perfectly solid, legal ground there.