Its been five days since President Donald Trumps lawyer sent cease and desist letters threatening to sue Stephen Bannon and Michael Wolff. Far from getting them to cease or desist, the book is a runaway best-seller and Bannon has belatedly apologized. If Trump actually sued either man, he would be an almost certain loser.
In any event, three themes going well beyond the legal analysis are of overarching importance, give vital context to the issue, and will likely drive the outcome of this brouhaha.
First, the three antagonists, Trump, Bannon, and Wolff are all of a piece and, in a sense, all deserve each other. They are hucksters, self-promoting salesmen and, ultimately, egotistic provocateurs. This whole incident will only add to the undeserved publicity they will all receive. Moreover, while I am unaware of Bannons proclivities for falsehoods, Trump and Wolff have a similar, distant relationship with the truth, though Wolffs falsities may be not as continual and blatant as the presidents.
Second, Trumps bullying litigation strategy, and his history of threatening lawsuits which never get filed are well-known. A lawsuit would open Trump and the White House up to broad discovery that would be extremely detrimental. Since Donald Jr.s and Kushners meetings with the Russians would be the basis of a libel claimBannon called them treasonous and unpatrioticit would force the White House, in discovery, to produce both documents and testimony from an unending list of witnesses about the Russian connection. Moreover, a libel claim would doubtless focus on statements by many White House staffers that the president is childlike and dumb. If such claims werent dismissed at the outset, they would lead to wide-ranging inquiries on those issuesboth inappropriate and embarrassing to the so-called leader of the free world.
In any event, Trumps history is to threaten lawsuits, but not to pull the triggerfor example, in his similarly written letter to The New York Times threatening a libel suit over an article detailing some of his sexual harassments. But when he has sued for libel, he has a totally losing record. Trumps record in the speech-related cases he brought before his election is four dismissals on the merits, two voluntary withdrawals, and one lone win in an arbitration won by default (as pointed out by Susan Seager, a former First Amendment attorney and USC professor, in an article that was censored by the American Bar Associationironically, because of fears of a Trump lawsuitbut then published by my organization, the Media Law Resource Center).
The most noteworthy was his case against author Timothy OBrien and his publishers over his books report that Trump was worth only between $150 and $250 million, not the multi-billions Trump claimed.
The suit was tossed by a New Jersey state court judge but not before Trump was deposed, wherein he admitted that his view of his net worth goes up and down with markets and with attitudes and feelings, even my own feelings I guess it was his feelings that drove his statements about Inauguration Day crowds and electoral results. And to show his real motive for suing, Trump later boasted to The Washington Post that he didnt mind losing because I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [OBriens] life miserable, which Im happy about.
Sadder still is that Trumps bullying and unprincipled tacticswhich one may be used to seeing in, say, a sleazy real estate developerare the same as those he is now undertaking as president of the United States. In any event, for all these reasons, it would be shocking if this lawsuit ever saw the light of day.
Third, more shocking still is the notion that any such lawsuit would include the essence of a cease and desist lettera motion or attempt by Trump to actually stop publication and distribution of Wolffs book. In legal parlance, that is asking for a prior restraint. Having government actually prevent publication and distribution of an individuals or private companys speech is the most unfavored step possible in First Amendment jurisprudence: that is because the very words of the First Amendment, saying that government cannot abridge freedom of speech, or of the press, directly prevents any such action.
Of course, that lesson was taught in the Pentagon Papers case, where the Nixon administration failed to have the courts restrain The New York Times from publishing classified documents detailing how the U.S. got involved in the Vietnam War while the war was still raging. If the president read New York Times Co. v. United States, or even saw the newly released Steven Spielberg movie The Post, he would know that a book could only be enjoined if it would surely result indirect, immediate and irreparable damage to our nation or its people. That is far different than if the book, even perhaps based on some false statements, causes embarrassment to the president.
Whatever the merits of Trump damage claims, his attempt to stop or limit distribution of the book is downright laughable. Indeed, as the book has by now already been released, it is also moot. Other than pique, its hard to see what sane reasoning Trumps lawyer or his client used to include a threat of a prior restraint in his letter.
Is Dumb as a Brick a Fact?
If you assumeas we mustthat Trumps lawyers plea for a prior restraint is pure fantasy, the chief focus of the two letters is defamation. According to basic and well-settled defamation law (libel is merely a defamation which is written or recorded, such as a book), Trump would have to prove that Bannon or Wolff made statements of fact, not opinion, which harmed the presidents reputation, andsince Trump is a public officialthose statements were made with serious doubts as to the truth or a high degree of awareness of their probable falsity. That latter formulation comes from Supreme Court cases directly following the courts legendary decision in New York Times v. Sullivan, where for the first time the court constitutionalized libel law and held that public officialsbecause of our national commitment to uninhibited, robust and wide open debate on public issueshad to prove that high standard of fault on the part of the publisher.
But before getting to the actual malice stage, Trump would have to convince the court that the statements he is suing on are fact, not opinion. That is because falsity is the prime element of a libel claim, and as we learned as kids, and as the Supreme Court opined, there is no such thing as a false opinion. But what is fact and what is opinion is a beguiling question. In a major case 27 years ago, the court said that the way to determine this is to see whether the statement in question is verifiable, that is, whether it can be proven true or false. Only if so, is it a fact.
But almost every other court throughout the country has ignored that narrow decision, with the New York Court of Appeals leading the way in calling it hypertechnical. Courts generally also look to contextwould a reader, in the context it was published, such as whether it was in a review or editorial, or in a straight news piece, treat it as fact or opinion.
Given those rules, it is still difficult to determine whether a court would find words such as treasonous, unpatriotic, or dumb as a brick, all terms the book reports Bannon described Trumps offspring as, actionable fact or protected opinion. Dumb as a brick would probably be adjudged to be nonactionable rhetorical hyperbole; unpatriotic, similar to other descriptions in the book of Trump as a moron or childish, probably is too subjective to be a fact; but since treason is a crime, it could be considered a fact, although in the context it was spoken I would bet a court would dismiss that claim as opinion as well.
Paradoxically, these were the very grounds Trump used to get dismissed a recent libel suit against him, brought by a would-be campaign worker whom Trump called a loser who begged him for a job. A New York trial court, affirmed by an appellate court, dismissed the case because those terms, while negative, were subjective opinion, not actionable false statements of fact.
Where Is the Proof?
One of the many faults with Trumps lawyers letter is that he gives no specific examples of what he claims to be defamatory; to a lawyer who has read hundreds of these types of letters, thats a clear signal that the would-be plaintiff is unhappy with the article, but doesnt really have evidence of any specific falsehood. But assuming I am wrong as to one of these examples or, more likely, that there are other more factual and false statements Trump will allege, the case would go on and discovery would ensue. That would give plaintiff Trump a chance to learn on what basis the statements were madeby whom, was the source anonymous, do Bannon and Wolff have proof of exactly what statements were madeand the publisher to probe and the world to learn lots of new facts about Trumps and his kids intelligence, the Russian connection, and lots of other White House dirt.
That would lead to a defense motion for summary judgment on the grounds that Trump could not prove actual malice, i.e., that the statements were not made with serious doubts as to their truth. Here, the analysis differs as to whether the defendant is Bannon or Wolff and his publisher Henry Holt. With respect to a defamation suit against Bannon, his belated denial, on Sunday, that he made the treasonous and unpatriotic statements about Trumps family members casts the issue in a new light: a preliminary question, perhaps based on what Wolff has in his tapes or notes, would be what Bannon actually said. If he was found to have defamed Trump and his family, and if the judge rules these are not opinions, then the issue would be whether they are true, and, if so, whether Bannon made the statements knowing they were false or, at least, with serious doubt as to their truth. The betting odds are strong that Bannon would prevail on one or both of those issues, but it is even clearer that the testimony on these issues would be the mediasand the viewersdelight.
Wolff Bites Himself
If some libel claims against Wolff and the book publisher survive a defense motion that they are opinions, then the normal rules of defamation law would apply. Most fundamental is that Wolff and the publisher would be responsible for defamatory statements made by their sources. It is not a defense to say that source said it, so therefore its true; the writer and publisher are responsible for the truth of the underlying statements.
Wolff may have shot himself in the leg here, as in an authors note at the beginning of the book, Wolff writes that Many of the accounts of what happened in the Trump White House are in conflict with one another. Many, in Trumpian fashion, are baldly untrue.
Since publishing false facts which he believes are untrue would be fatal, Wolffperhaps at the urging of his lawyeradds to his note that he has allowed his sources to present conflicting versions of the truth and hopes the reader can judge their veracitysomewhat of an abdication of a journalists role. But he then concludes that he settled on a version of events I believe to be true. If Wolff can convince a judge on a motion, or a jury if the case gets to a trial, that he did believe the otherwise defamatory statements to be true, he should prevail. If not, and if judge or jury believes he had serious doubts about their truth but published them nonetheless, he and his publisher would be in trouble.
This conclusion may seem counterintuitive, as one would think that repeating what public figures say about each other, even if nasty and false, should be protected. Who would not publish an accusation of bribery Gov. Cuomo might make against Mayor de Blasio, even if the reporter didnt believe it to be true? Isnt such a statement inherently newsworthy as are statements by Cabinet officials about their president? In fact, arent such statements more about the venom of the person who made them than about the person alleged to have committed some dastardly, but likely unbelievable, act? Though such unsupportable allegations surely are newsand newsworthyunder our republication doctrine they are not protected if the writer doesnt believe the accusations he is repeating.
Although a few courts have recognized an exception to this somewhat crazy rule in the doctrine of neutral reportageif the media is reporting the charges and countercharges of responsible public figures without taking sides, they should be protectedmost courts have not recognized this most-worthwhile doctrine.
The White House Shouldnt Be Run as a Real Estate Company
A stronger case against Bannon than straightforward defamation might arise from the nondisclosure agreement Bannon apparently signed upon assuming his job. According to Trumps lawyers letter, this NDA bars Bannon from disclosing confidential information (outrageously broadly defined), making disparaging statements (without having to overcome the constitutional standards of libel), and talking to the media (such as Wolff).
First, it must be emphasized that Trumps running the White House much as he ran his real estate businessand making such government employees, who ultimately work for us, sign such NDAs is as inappropriate as it is unprincipled. It is another bit of evidence that he is trying to run the country just as he ran his business, with total control over everything, such niceties as separation of powers be damned. Fortunately, about 10 years ago the Supreme Court weighed in on this question, and ruled that the Constitution would not allow for a government employees free speech rights to be limited where they pertain to matters of public concern. Since Bannons comments clearly concerned public matters, Trumps claim, based on the NDA Bannon apparently signed, would be blocked by the First Amendment if Bannon made the statements as a government employee. If they were made prior to January 2017, but after the NDA was signed, then Bannon might face a tougher battle.
Finally, Trumps lawyer alleges the tort of tortious interference with contract against Wolff. That is that Wolff knew of the NDA, but nonetheless induced Bannon to breach his agreement with Trump. For a number of reasons, this claim is about as weak as his libel threats. Tortious interference with contract is one of a number of so-called newsgathering torts which can be brought against reporters, that is, claims which arise out of the reporting process. Trespass, fraud, actual breach of contract are others. Reporters are not treated differently in these cases from other folks. But unfortunately for Trump and his lawyer, the only newsgathering tort for which this is not true is tortious interference with contract. There, the societal interests in inducing the breach are considered, and since the public interest in disseminating newsworthy information certainly would trump Trumps interest in enforcing his NDA contract, it would put his claim on a very weak footing.
Moreover, the very tort of interference with contract was aimed to protect one competitor from another. In fact, the tort was first recognized in the middle of the 19thcentury where an opera singer of some distinction, while on contract to one opera house, was enticed to break her contract by a rival opera house which sought to procure her services. This case presents facts wholly different: Trump and Wolff are not competitors; they are not even in the same industry so relying on this tort seems awfully far-fetched.
In the end, the letters of Trumps lawyer, Charles Harder, are seeming to backfire. They certainly have not scared Wolff or Henry Holtindeed, in the face of the cease and desist letter, they moved up the date of publication. Bannon has become contrite, but that seems far more due to his personal situation with Breitbart and his purported relationship with Trump than with any fear of lawsuits. Like many of Trumps lawyers similar threatening letters through the years, the chances of a lawsuit suggested in the letter are very slimand with good reason, as for the reason set forth above, the claims are likely losers. What they have done is given Wolff and his book almost unprecedented publicitythe last thing Wolff deservesand a rush on bookstores rarely seen. Why these letters were sent is a mystery. The only conceivable answer is Trumps thin skin and his obsession to punch back in public.
George Freeman is the executive director of the Media Law Resource Center, a nonprofit trade association supporting the media in legal matters. Prior to that for 31 years, he was in the in-house newsroom counsel to The New York Times.