President Trump’s angry break with his former chief strategist Stephen K. Bannon escalated Wednesday night with a threat of “imminent” legal action.
Bannon is quoted describing, among other things, a Trump Tower meeting during the campaign between Donald Trump Jr.; Jared Kushner, the president’s son-in-law; and a Russian lawyer as “treasonous” and “unpatriotic.”
Bannon’s comments to the writer “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,” Trump’s lawyer wrote. “Legal action is imminent.”
It all sounds so tough. But in this case, it probably isn’t.
A cease-and-desist letter doesn’t actually carry any legal weight — it is simply a warning letter asking someone to stop certain behavior or else the sender will pursue legal action. It is often a form of intimidation, or simply an attempt to settle an issue outside of litigation, said Orly Lobel, a law professor at the University of San Diego School of Law whose research has often focused on employment issues.
It can be effective against someone who can’t afford a pitched legal battle and gets scared off. But for a recipient who can afford a fight — like Bannon — it’s another story.
Without legal action, specifically a lawsuit, such a letter is just a piece of paper. So should Bannon refuse to comply with the letter, Trump would have to sue to enforce it.
But would Trump really want to start a court fight with Bannon? Suing Bannon would potentially require Trump to testify under oath, and would open them both up to discovery, in which all sorts of explosive revelations could come tumbling out. The president’s critics would probably welcome that. These things can get ugly.
But, experts say, it seems unlikely that the feud would reach that stage.
Trump is a public figure. So suing for defamation, as the letter threatens, could require Trump to prove that a statement made by Bannon was false, damaging and delivered with actual malice, meaning that Bannon knew his comments were false and made them anyway.
Suing Bannon for breaking an employment contract would be even more difficult, said Lobel, who described the move as a “desperate” attempt by Trump to silence his former confidant.
Arguing that Bannon breached a contract would potentially “signal that there’s some truth there in what he’s saying,” Lobel said, a thought also raised by other legal experts on social media.
More importantly, Lobel and other legal experts said Bannon’s speech stemming from his time in the White House would probably be protected. A government employee’s free-speech rights are protected by the Constitution’s First Amendment insofar as they pertain to matters of public concern, the Supreme Court ruled in 2006 in a case called Garcetti v. Ceballos. Lobel argued that the behavior of the president — and especially his campaign’s involvement with the Russians — are undoubtedly a matter of public concern.
So Trump’s lawyers would probably need to draw a difficult distinction between quotes Bannon made as a campaign employee or private citizen versus those he made while employed by the White House.
And even if Bannon revealed information that drew from his time as a private citizen during the campaign, his speech could still be protected, Lobel said. The Defend Trade Secrets Act, signed into law by President Barack Obama in 2016, provides immunity to whistleblower employees who report suspected illegal activity. That might or might not apply to Bannon. But either way, his lawyers would argue that it did.
In the cease-and-desist letter, Trump’s lawyer wrote that Bannon breached three sections of his employment agreement with the Trump Organization by communicating with Wolff, disclosing confidential information and making disparaging statements and in some cases outright defamatory statements about Trump, his family and the campaign.
Bannon has not revealed the exact terms of the contract he signed. But according to Trump’s lawyer, Bannon promised in his employment agreement not to disclose confidential information, not to demean or publicly disparage Trump, his family, or the campaign, and not to communicate with any member of the news media on behalf of, or about the campaign, without express written authorization from the campaign or Trump.
Confidential information, according to the letter sent to Bannon, included “all information . . . of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential, including, but not limited to, any information with respect to the personal life, political affairs, and/or business affairs of Mr. Trump or of any Family Member …”
The letter demands that Bannon stop communicating either confidential and or disparaging information, and preserve all records in preparation for “imminent” legal action.
During the presidential campaign, other staffers described how Trump forced their silence through such restrictive agreements, which are highly unusual in political campaigns. One such document, obtained by The Washington Post, includes a “no-disparagement” clause that requires staffers to promise “during the term of your service and at all time thereafter” not to “demean or disparage publicly” Trump, his business ventures or any of his family members or their business ventures “and to prevent your employees from doing so.”
Essentially, he approached his campaign staff much as he did the employees of his business ventures — demanding control over what they can and can’t say. As he transitioned to the White House, some wondered if he would enforce a similar silence from his administration — raising concerns about government transparency.
During the campaign, he was asked by The Washington Post’s Robert Costa whether he would make employees of the federal government sign nondisclosure agreements.
“I think they should,” he said. He added: “When people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that. I mean, I’ll be honest. And people would say, oh, that’s terrible, you’re taking away his right to free speech. . . . I would say . . . I do have nondisclosure deals.”
He said his then-campaign manager Corey Lewandowski, press secretary Hope Hicks and senior adviser for policy Stephen Miller all signed such nondisclosure agreements.
“I don’t like people that take your money and then say bad things about you,” he said. “But I will say that in the federal government it’s a different thing. So it’s something I would think about. But you know, I do right now — I have thousands and thousands of employees, many thousands, and every one of them has an agreement.”
As a candidate and a businessman Trump used litigation and threats to silence his critics.
“He deploys an array of tactics to fight back — countersuits, threats and personal insults, among others — while using stringent confidentiality agreements to guard against insider accounts from employees, business partners, his former spouses and now his campaign staffers,” The Post’s Frances Stead Sellers wrote in July 2016.
That same week, court filings revealed that he had sought $10 million in damages from fired campaign consultant Sam Nunberg, alleging that he violated a nondisclosure agreement by leaking confidential information to the press.
“He was used to being able to do this in his private life,” Lobel said. And as a president, he has continued to use angry threats in attempts to silence critics — particularly on Twitter and in cease-and-desist letters.
“It’s hard to see how it helps him here,” said Orin Kerr, a law professor at the University of Southern California.
Other lawyers and critics of the president expressed similar views on Twitter.
“This reeks of desperation,” one post read.
This reeks of desperation like Donnie got so mad he ordered his attorney to fire off a “certified letter.” Unenforceable as to comments not related to campaign and the NDA would not prevent legally required testimony.— Dwight Williams (@dwight_esq) January 4, 2018
Well this is stupid.— Bradley P. Moss (@BradMossEsq) January 4, 2018
One, it keeps the story alive and gives Bannon more media oxygen.
Two, the NDA doesn’t apply to anything that happened once Bannon became a federal employee.
Three, do you really want to risk litigation here and subsequent risk of discovery? Really? https://t.co/b2lgtEUwWz
This is amateur hour. A lawsuit filed by Trump in his personal capacity against Bannon? That would open discovery and that would be marvelous. But, alas, no suit will be filed and everyone knows it - which makes this cease and desist letter a complete joke. https://t.co/5ZSHC4mI8t— A Damn Lawyer (@adamnlawyer) January 4, 2018
Seems like a desperate attempt by Trump to try to squelch info. And doesn't this backfire? If Bannon can't talk to journalists, the 1 person he can talk to is a guy named Mueller, who can pierce the NDA in a heartbeat. So this move just underscores the continuing need for Mueller https://t.co/zezDzcfp7P— Neal Katyal (@neal_katyal) January 4, 2018
Carol Leonnig and Frances Stead Sellers contributed to this report.
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