President Donald Trump’s cease-and-desist fury over an embarrassing tell-all book released last week carries a boat-load of legal rhetoric, but little legal weight.
The book, Fire and Fury: Inside the Trump White House by Michael Wolff, is loaded with multitudes of criticisms about the president and his family, and led Trump’s attorneys to send cease-and-desist letters to the book’s publisher and former White House Chief Strategist Steve Bannon.
Bannon is a primary source of many of the book’s embarrassing revelations about Trump and his family. And after book excerpts were released in advance of its publishing, Trump did not hesitate to criticize Bannon and threaten legal action.
Bannon’s right to free speech
But what legal action can prevent Bannon from saying what’s on his mind?
“He has a right to free speech,” says attorney William T. Webb of San Francisco-based Webb Legal Group. “He can say almost anything he wants to say about Trump, because Trump is a public figure.”
The key to the free speech is Bannon’s opinion, Webb says. “Opinions are not actionable. Bannon could say, ‘In my opinion, Trump is not fit to be president.’ And that would be fine, because it’s just someone’s opinion, and an opinion is not defamatory.”
But, Webb adds, “Where Bannon might get into trouble is if he said something that would be factual, like ‘Trump has an I.Q. of 37.’ Such a fact would have a defamatory meaning – i.e. that Trump is stupid, and it could be objectively tested, as a yes or no, true or false statement. And if he said it with malice, then that could be actionable under a case called New York Times v. Sullivan,” Webb says.
As for the cease-and-desist letter sent to Bannon, Webb says, “It’s a warning shot across the bow. It doesn’t have any legal weight.”
Trump’s lawyers claim Bannon violated an employment agreement that prevents Bannon from “disclosing any confidential information to anyone of or about Mr. Trump, or any of his family members,” and other exclusions. But to what extent is he legally bound?
NDAs for White House staff
Key elements of NDAs typically include definitions of what is deemed to be confidential, the scope of the confidentiality, exclusions, and terms of the agreement. And while governmental NDAs tend to focus on state secrets and classified information, Cheri Cannon, an employment-law specialist in Washington, D.C., told the Daily Beast there’s no way for Trump to prevent his political appointees from talking about him or his family
Cannon said political appointees can be fired for any reason because they serve without due process. But First Amendment rights come into play when it comes to “trash-talking” your boss, she said. So, while Bannon may have signed an NDA while working in the White House, it would likely be unenforceable. And even if he signed an NDA while working on the Trump campaign, it’s unlikely that it would be used against him, as any legal challenge of the NDA could expose Trump to cross-examination under oath during depositions.
Personal privacy and national security
The cease-and-desist letter also claims Trump’s right to privacy has been violated, but, Webb says that, too, is a toothless claim. “First of all, he’s the president of the United States. There are a number of different ways you could invade someone’s right to privacy, but this doesn’t match any of them.”
Moreover, Bannon is not the only source for Wolff’s book. Sam Nunberg, a former campaign aide who was fired, told Wolff about the time he tried to explain the Constitution to the president. “I got as far as the Fourth Amendment before his finger is pulling down on his lip and his eyes are rolling back in his head,” the book quotes Nunberg as saying.
Could the president’s legal team argue that the book reveals confidential government secrets? There is precedent for the government to censor such revelations. For instance, the Central Intelligence Agency has a publications review board that reviews and approves content before it can be published. Former CIA agent Valerie Plame’s book, Fair Game, is filled with black splotches censoring words, sentences, and even whole pages.
But it’s unlikely that Wolff’s book would be subjected to the same treatment. After all, do Trump’s petty grievances qualify as state secrets that should be redacted and concealed from public consumption?
Seeking to quell the president’s anger over the book, Bannon issued a statement praising both Donald Trump Jr. and the president and claiming that one of the most provocative comments attributed to him in Wolff’s book – that Trump Jr.’s actions were “treasonous” in meeting with a Russian lawyer who promised dirt on Hillary Clinton – were actually aimed at former Trump campaign chairman Paul Manafort. Regardless, the book’s publisher, Henry Holt, is rushing to print more copies. It has been selling out in bookstores across the country and remains the top seller on Amazon.com.