What Employment Lawyers Are Saying About Trump's 'Cease and Desist' Against Bannon
"It seems like Trump does view himself as the CEO of America Inc. and is attempting to use and enforce and gag Bannon the way a private employer would do," one employment law attorney says. "Using these corporate instincts in a government context doesn't make sense. There is a lot of bluster in this letter."
January 04, 2018 at 05:15 PM
6 minute read
The threat of legal action to quash the publication of a behind-the-scenes close-up of the Trump White House is a common tactic in the corporate world that won't likely fly in the government context, employment attorneys said Thursday.
Charles Harder, a lawyer representing President Donald Trump, is demanding author Michael Wolff and the publisher of his tell-all “Fire and Fury: Inside the Trump White House” to not distribute the book. Harder claims details of the book—published in media reports—are potentially libelous and violate the employment agreement signed by former strategist Steve Bannon.
Lawyers Say Trump Would Be 'Laughed Out of Court' in Lawsuit to Block Book
Harder said in the letter that legal action was “imminent.” He called for the publisher, Henry Holt & Co. to cease and desist from any further publication, release or dissemination of the book. The publisher reportedly moved up the release of the book to Friday.
Bannon, the head of Breitbart News who left a top role in the administration late last year, made unflattering comments about the president and his family in the book, according to an excerpt published in New York magazine. Such reports prompted the president to call his former strategist “a self-aggrandizing political charlatan.”
Employment attorneys said the political drama does not have an obvious legal path forward, even though such employment agreements—barring the revelation of certain details, or blocking negative commentary—are common in private corporate environments.
“It seems like Trump does view himself as the CEO of America Inc. and is attempting to use and enforce and gag Bannon they way a private employer would do,” said Mark Konkel, a labor and employment partner at Kelley Drye & Warren. “Using these corporate instincts in a government context doesn't make sense. There is a lot of bluster in this letter.”
Sarah Huckabee Sanders, the White House press secretary, on Thursday described Bannon's agreement with the White House as an “ethics agreement.” Asked whether Trump would sue Wolff over the publication of the book, she said: “That's something that I would refer you to the president's attorneys, but our position is very clear, that we think it is full of false and fake information.”
Media journalist Brian Stelter at CNN tweeted a response from Wolff's publisher Thursday evening: ”We see 'Fire and Fury' as an extraordinary contribution to our national discourse, and are proceeding with the publication of the book.”
Nondisclosure agreements or those that require ex-employees not to disparage their employers can give a company some flexibility in severance agreements. And while freedom of speech rights are limited in that context, the government generally cannot stop someone from speaking freely.
Details are still hazy on the actual employment agreement itself, but employment attorneys suggest Harder's cease and desist demand may be an intimidation tactic that holds little legal sway.
Harder, of Beverly Hills, California's Harder, Mirell & Abrams, was not immediately reached for comment Thursday. Harder was on the team that toppled Gawker Media.
Konkel said if Bannon were to disclose information considered confidential or crucial to national security, then he would face criminal charges. Offering his opinion to a book author would not likely be considered libelous and such an employment agreement would be weak, Konkel said. Such actions would run afoul of free speech laws, he added.
“In the federal government context, it would be unusual to sign a nondisclosure agreement that would be that broad,” he said. “The government can't bar speech. It would be unheard of for a government entity to enforce an agreement against a former administration official to bar the official from saying anything bad about anyone he worked with in the past.”
If Bannon is simply telling Wolff his opinions on the presidency, that is not something an employer or the government would restrict, said Jessica Glatzer Mason, a Gardere labor and employment partner in Houston.
“This seems to go beyond what the Constitution allows,” Mason said. “They are going too far. Obviously, if he is disclosing state secrets that would be bad.”
Harder's cease and desist letter appears more like an intimidation tactic used often in the corporate world to pile on costs to stop accusations from moving forward, Mason said. There does not appear to be a strong reason to restrict free speech in this instance, she said.
“The competency of the president is a matter of public importance,” Mason said.
Don Schroeder, a Foley & Lardner labor and employment partner in Boston, said it would be common for a high-level executive leaving a company to have certain restrictions imposed, including confidentiality. The terms of any employment agreement Bannon signed will dictate whether there was any breach.
Schroeder said Trump could ask for injunctive relief to stop the publication of the book. Any opinion commentary published in Wolff's book, he said, would not likely be considered libelous.
“It will depend on how broad the confidentiality agreement is and how tight,” Schroeder said. “Every judge is different. You would have to show the threat of irreparable harm and the likelihood on the success of the merits.”
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