Donald Trump. Fire and Fury

Trump v. Bannon: The Bad and the Ugly

By Grace Lidia Suarez

Yesterday, Trump’s lawyers sent Fire and Fury author Michael Wolff and his publisher, Steve Rubin, of Henry Holt and Company, a “cease and desist” demand.

The Demand

Unpacking the tasty bits, Trump accuses Wolff et al of libel, libel per se, false light invasion of privacy, tortious interference with contractual relations, and inducement of breach of contract.

Libel (New York law cited) is a false written statement which causes injury. Libel per se is a false accusation of a crime or one that injures a person in his trade or profession.

False light invasion of privacy involves a statement that is either false or which places the person in a false light, is highly offensive to an ordinary person, and is made in reckless disregard whether the statement is false.

Because Trump is a public figure, libel requires actual malice, which really means a reckless disregard for the truth. Trump asserts this is shown by statements in the introduction to the book that admit some of the statements are not true, its failure to cite sources, the denials of some of the cited sources, and the lack of personal knowledge by some of the sources.

Trump demands Wolff and his publisher stop publication and apologize, and warns them that they face monetary damages.

In addition, Trump accuses them of inducing Bannon to break his non-disclosure agreement.

Trump’s Problems

The elephant in the room, as in most defamation cases, is that the statements must be false. In other words, the truth is a defense, as Oscar Wilde found to his eternal regret.

So for example, the statements about Trump’s conversations with the husbands of women he wanted to sleep with, if true, would not constitute libel.

Now even if untrue, Trump’s problems are not over. He has to prove that Wolff either knew the statements were false, or he couldn’t care less and acted in reckless disregard of the truth.

Finally, there is the question of damages. How is the reputation of a man who admits to coming on to married women damaged by a story that says he came on to married women?

The other problem is that opinions cannot be defamatory. In the case of the conversations above, they are facts. Other statements (“f*****g moron,” etc.) are certainly an opinion.

The final problem is the process. Before a defamation case makes it to a courtroom there is a procession of discovery, interrogatories, and depositions. I suspect First Amendment lawyers will be falling all over themselves to depose Trump and his people.

I can imagine the scenario where a lawyer asks Trump if it’s true he’s only semi-literate and then asks him to read and interpret portions of the Constitution. Here is the portion of the book:

Trump didn’t read. He didn’t really even skim. If it was print, it might as well not exist. Some believed that for all practical purposes he was no more than semiliterate  .?.?. . Some thought him dyslexic; certainly his comprehension was limited. Others concluded that he didn’t read because he didn’t have to, and that in fact this was one of his key attributes as a populist. He was postliterate—total television.

But not only didn’t he read, he didn’t listen. He preferred to be the person talking. And he trusted his own expertise—no matter how paltry or irrelevant—more than anyone else’s. What’s more, he had an extremely short attention span, even when he thought you were worthy of attention.

Yes, the examination would be truly delicious.

Even in an ordinary lawsuit by a public figure, the likelihood of success is not high. Hollywood Reporter says that a study (unfortunately behind a paywall) reports less than half of lawsuits brought by public figures succeed, although the number of such suits has risen.

The other huge problem is that Trump is seeking a prior restraint on publication. That is virtually impossible to obtain and illustrates the lack of legal knowledge of his attorney or his absolute capitulation to his client’s irrational desires.

Discovery, of course, is a two-way street, but that again may hurt Trump. Wolff is said to have recordings of interviews with some of the people quoted in the book. He has not made them public – yet – but of course hearing those people may be even more damaging than reading second person accounts.

The Likely Result

The publisher has already announced it is going forward with dissemination, and in fact, is attempting to advance the date. In addition, another excerpt was published today by Hollywood Reporter.

“Henry Holt confirms that we received a cease and desist letter from an attorney for President Trump. We see ‘Fire and Fury’ as an extraordinary contribution to our national discourse, and are proceeding with the publication of the book.”

At least one defamation expert throws cold water on the suit.

Ben Wizner, director of the American Civil Liberties Union’s speech, privacy and technology project, said earlier Trump’s lawsuit had no chance of success.

“Even Donald’s Trump’s lawyers aren’t crazy enough to present this to a court,” he said. “It would be extraordinary and unprecedented for a court to respond to these claims by blocking publication. That is not going to happen.

“I think there is an audience of one for these legal threats and that’s Donald Trump.”

Trump’s reaction lends credence to some of the allegations in the book. It makes him look just as impetuous and devoid of calm intelligence as Wolff asserts. He has guaranteed the book will be a blockbuster.

Excuse me, gotta go put in my order.

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