Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book

from the 2018-kicks-off-with-a-bang dept

If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff’s upcoming book Fire and Fury, in which former Trump “Chief Strategist” Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family — including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was “treasonous.” Trump quickly responded in kind with one of the most incredible statements you’ll see (and that’s saying something, given the speaker) which starts out thusly:

Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party.

It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book’s publisher, demanding that the book not be published at all — and that they send Harder a complete copy of the book.

So, let’s lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us — and we’ve written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We’re also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of… not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around.

ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts:

“This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent.”

“You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff?s book and publicity surrounding the marketing and sale of his book.”

“Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity….”

The letter then cites parts of Paragraph 8 of the Agreement: “Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach.”

The “Damages and Other Remedies” part of the Agreement is then cited, “Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person?s remedies at law or in equity, all of which are expressly reserved.”

“Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to ‘an award of reasonable legal fees and costs.”

Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times — but not very successfully. Also, I’m not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven’t always gone well (though I’m sure the media would salivate over such a thing).

Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be… unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it’s difficult to know if anything actually reaches the level of defamation — nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator — and there are already reports that Bannon planned to use the book “to settle scores” against people he disagreed with — such as Jared Kushner. But portraying people negatively, by itself, is not defamation.

So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure — and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That’s not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it’s not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you’re claiming defamation and have an actual basis for such a claim).

Of course, there may be other concerns as well. Some are already raising questions about Wolff’s reporting in the book, which could create an interesting wrinkle should a case actually show up:

And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he “invented or changed quotes.” So it’s hardly surprising that a bunch of articles are popping up digging into Wolff’s history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly.

As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It’s certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts — especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing’s really happened on that front so far.

It does seem worth pointing out that there’s a built-in contradiction if Bannon’s statements are both defamatory and a confidentiality agreement violation. Because if it’s violating confidentiality, well, then that’s an admission that it’s true and not made up. It’s possible that Harder is claiming some statements are defamatory while others breach confidentiality –but it’ll be fun determining which ones are which.

So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it’s difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book… is a really bad look. It’s no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn’t help change that impression.

As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they’re loving the threat for all the free advertising it’s providing. There’s a term for that, I think. On top of that, I’d argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it’s not a surprise.

Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn’t tend to work well. It is likely to only lead to more leaking and more talking to the press — though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar “free advertising” blitz from the President and his lawyers.

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Comments on “Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book”

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The Wanderer (profile) says:

Re: Re: Re:

Interestingly, I saw a piece recently (I believe in the Washington Post) which argued that he may have gotten the term “fake news” from Hillary Clinton’s use of it (in a different and more traditional sense) a few weeks earlier, post-Election-Day, and simply decided to co-opt it for his own use and his own Humpty-Dumpty meaning.

Anonymous Coward says:

Re: Re: Re: Re:

Yes, most of the nominal left seems to have forgotten that we were the ones who invented the term “fake news” and began fearmongering about it, long before it ever graced the grand idiot’s lips. Some of us had the foresight to warn that it was a dangerous term that would be instantly co-opted by anyone and everyone who wanted to delegitimize any news they don’t like whether it is truly “fake” or not. We were mocked…

Thad (user link) says:

Re: Re: Re: Re:

The phrase “fake news” was all over the major media in the weeks following the election, referring specifically to fraudulent sites with completely fabricated stories designed to look like news sites.

Trump co-opted it to use it as a term of derision for news media he doesn’t like. His claim to have invented the term “fake news” is as accurate as his claim to have invented the term “tax cuts”.

The Wanderer (profile) says:

Re: Re: Re:

The ranked-preference voting system which is most comonly meant by the shorthand of “IRV” actually is fairly bad as ranked-preference systems go; it does have the advantage that it’s simpler and easier to explain than most of the better ones, but it only changes the structure of the strategic-voting gaming-the-system incentives, it doesn’t eliminate them entirely.

To eliminate those incentives (and the “spoiler effect”) entirely, you need the Condorcet method, or something else that satisfies the Condorcet criteria.

(Those methods do have the downside that they still leave open the possibility of a “true tie”, in which every candidate beats at least one other but is beaten by at least one other. IMO, however, that sort of tie simply means that the electorate really is so evenly split that there really is no “candidate preferred by the majority” – in which case there’s no reason not to break the tie by random draw.)

David says:

Re: Re:

I call triple P: punishment for perjury is for peons.

Besides, I don’t think Trump is able of telling wittingly either truth or untruth. That requires a grasp of reality.

Testifying under oath would not make a difference for him I think. He is telling his personal truth either way. It’s just that he can afford a much more significantly personalized truth than most others.

The Wanderer (profile) says:

Re: Re:

When that agreement was drafted and signed, Trump almost certainly wasn’t President yet. The “Company” being referred to is probably the Trump Organization, i.e. the umbrella under which all of the Trump family’s properties operate and those individual properties, collectively.

Trump would be more likely to care about damage to that Company than to the office of the President, or to the USA, anyway.

John85851 (profile) says:

The point is that it could be expensive to defend

I think the last paragraph sums up the real reason for this case: Trump and Harder are filing a legal threat with the assumption that the case will be very expensive to defend against. And since it’s too expensive to defend, the publisher will simply give into the demands.

Trump doesn’t want this to go to court and have to give a deposition over whether the alleged defamation statements are true or not. And how would it look if a sitting US president was giving testimony in a libel case to block the sale of a book? Then again, I doubt Trump cares about his image as long as he thinks he’s “winning”.

That One Guy (profile) says:

Re: The point is that it could be expensive to defend

Quite possibly, however you can bet that the publisher would be weighing whether the PR boost for the book from being sued by the President of the US would outweigh the costs of defending themselves in court.

(Not to mention, as several people have pointed out, there’s good odds that if push comes to shove Trump will back down rather than face discovery in court, which could go really badly for him. It’s one thing to claim that someone is lying, another entirely to be legally required to back that up and give them the opportunity to place their evidence into the record.)

You can’t pay for that kind of PR, so it might be worth the legal fees to stick to their guns.

Anonymous Coward says:

Re: Re:

This site has gone so far downhill in the last few months that I don’t even dream about it any more. Sad. There’s not enough wit or intelligent sarcasm to bother responding to the drivel posted. Pathetic. Not worth my time. Or energy. Even in my dreams. Right, Tonto? Right, Kimosabee. Leave them be, we have sacred arrowheads to gather for coming of the next full moon ceremony celebrating the death and extinction of Masnick’s honor and nobility, now gone forever, leaving only dust scattered far and wide over this graveyard where good ideas and insightful comments are buried under nameless headstones by fearful morons.

Anonymous Coward says:

"built-in contradiction"

“there’s a built-in contradiction if Bannon’s statements are both defamatory and a confidentiality agreement violation.”

Not really. “Embellished truth” would fit both categories. That’s generally how defamation works, taking the worst (truthful) things about a person and exaggerating, distorting, and expanding them into a narrative that as a whole could be considered basically false while containing elements of truth — or — basically true while containing elements of falsehood.

Why does this even need to be explained? Hasn’t everyone experienced this sort of thing from Kindergarten onward?

The Wanderer (profile) says:

Re: Re: "built-in contradiction"

The trouble is that there’s a colloquial meaning of “defamation”, and then there’s the meaning the term has under the law, and the former is very much broader than the latter.

One part of the definition from gcide is simply “the wrong of maliciously injuring the good name of another”, with no reference to truth or falsity about it, and I think that’s probably reasonably close to the colloquial meaning of the term.

Attempting to apply the penalties provided under the law for the law’s definition, but using the colloquial definition, would be so excessively restrictive as to violate the First Amendment – and so the law isn’t going to be expanded to use the colloquial definition any time soon, if ever.

It might be possible to combine broadening the definition of defamation to the colloquial one with reducing the penalties to something that doesn’t result in violation of the First Amendment – but the end result would be penalties so weak that they would not remotely satisfy someone who’d be likely to sue for defamation in the first place, so that’s not likely to happen either.

Anon says:

Injunctive Relief?

Why would trumptard be able to sue the publisher or Wolff anyway? The agreement was with Bannon. This is not Bannon’s book, so Bannon has no option now to halt it. The problem occurred when Bannon talked t Wolff. Now the cat/hairpiece is out of the bag – Bannon can’t sign away Wolff’s or the publisher’s rights. The NDA does not apply.

So the only issue is libel. As mentioned, the bar for a public figure is high… very high. Unless Wolff said (not Bannon) “I’m gonna get that bastard!” how do you prove malicious intent?

Roger Strong (profile) says:

Re: Injunctive Relief?

Why would trumptard be able to sue the publisher or Wolff anyway? The agreement was with Bannon.

Bannon was the Trump White House’s Karl Rove, in on all the secrets. He was part of the National Security Council. He could do more damage than Chelsea Manning or even Edward Snowden

Should he spill secrets in his book, that would put the publisher in the same position as WikiLeaks and Wolff in the same position as Julian Assange.

That’s mostly at the discretion of the President, but he’s not widely known for discretion.

ANON says:

Re: Re: Injunctive Relief?

Violation of the official secrets act would be a criminal offense, not a civil lawsuit. Any injunction related to that would be brought by the Attorney General on behalf of the government. Plus, that would be over officially classified material (like where the missiles are hidden) not over the president’s illiteracy or cheeseburger addiction.

There is no suggestion that anything in this book rises to the level of official state secret.

John85851 (profile) says:

Fascism or Totalitarianism?

I can’t decide if this is an example of modern-day fascism or totalitarianism.

In the old days, dictators could keep control by saying “If you talk bad about me, I’ll send you to the gulag”.
Now, dictators say “If you talk bad about me, I’ll sue you and family for so much money that you’ll go bankrupt just thinking about it.”
Either way, the effect is the same: people are afraid of talking bad because they fear the consequences.

Anonymous Coward says:

Historically, trying to enforce a code of silence in this manner doesn’t tend to work well. It is likely to only lead to more leaking and more talking to the press — though perhaps with less willingness to put names on the quotes.

In other words: The more you tighten your grip, Trump, the more confidential information will leak through your fingers.

Thad (user link) says:

Re: Is Even Trumplethinskin That Stupid?

I suspect it’s a bluff and he doesn’t really intend to sue (much like Harder’s threats on behalf of Harvey Weinstein a few months ago).

That said, I wouldn’t put money on it. I would never bet against Trump doing something impulsive and against his own interest because he was mad over a petty slight.

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