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Why Trump can't stop 'Fire and Fury'

While the East Coast was being pounded Thursday by a brutal winter storm, President Donald Trump's latest lawyer, Cha...

Posted: Jan 5, 2018 12:41 PM
Updated: Jan 5, 2018 12:41 PM

While the East Coast was being pounded Thursday by a brutal winter storm, President Donald Trump's latest lawyer, Charles Harder, tossed a "bomb cyclone" of his own into the news cycle.

Harder, who helped put the website Gawker into bankruptcy for its unauthorized publication of a Hulk Hogan sex tape, entered the arena issuing "cease and desist" threats to Michael Wolff, author of "Fire & Fury," the highly unflattering Trump tome, the book's publisher and former Trump chief strategist, Steve Bannon.

Harder previously represented first lady Melania Trump in her defamation lawsuit against the Daily Mail, which resulted in an apology and, according to the Associated Press, a settlement of about $2.9 million.

Harder's threat letter poses a greater risk to Bannon than the truly empty threat of a defamation-related lawsuit naming Wolff and his publishers. The Harder cease and desist letter refers to a "non-disparagement" agreement that was allegedly signed by Bannon during the Trump campaign prohibiting him from "disparaging Mr. Trump, or any of his family members, or any of their businesses, or the campaign." No such agreement would stop Wolff and his publisher from distributing a book quoting Bannon's remarks.

Bannon might quite reasonably assert that such an agreement cannot bind him now as his derogatory references to Trump insiders in the Wolff book focused on the period of the Trump presidency rather than that of the Trump campaign.

After the inauguration, Bannon became a federal employee working as "special counselor to the President" and as such he will claim that he is not bound by an earlier, private sector employment agreement relating to the campaign. He could also assert the First Amendment right of free speech, permitting him to comment on activities that occurred while he worked in the Trump White House.

Any Bannon criticism of the Trump campaign, however, might be fair game for Trump to use in a lawsuit against him, depending on the precise wording of the non-disparagement agreement. Proving damages would be extremely difficult because the President and his family have already been subjected to such an enormous volume of disparaging criticism in the rough and tumble of presidential politics that it would be almost impossible to isolate the impact of Bannon's nasty comments in the Wolff book.

Bannon, therefore, would likely win any lawsuit arising from a campaign non-disparagement agreement signed by him. On the other hand, Bannon might even have a counterclaim against the President, who referred to him as "out of his mind."

Proving a defamation-related lawsuit against Michael Wolff and his publishers would be even more difficult. To win such a case the President must establish that false and defamatory material about the President was published in Wolff's book and that both Wolff and his publishers acted with "actual malice" in publishing the material. This requirement, established in the famous case of New York Times vs. Sullivan, often makes lawsuits filed by public figures impossible to win.

As with the Bannon "disparagement" claim, proof of identifiable damages traceable to Wolff's book would pose yet another insurmountable challenge in a Trump defamation lawsuit. (The publisher is putting the book on sale four days early in light of the anticipated demand for its explosive revelations.)

The President's criminal lawyers will also warn him that any record created in such a defamation trial could be used against the President in criminal or impeachment proceedings. Wolff's attorneys would also be able to take a deposition of the President, possibly asking embarrassing questions related to the inner workings of the White House and about how the President claims his reputation was damaged by the book.

President Bill Clinton's false answer under oath during a deposition in the Paula Jones civil case resulted in one of the charges lodged against Clinton in his impeachment proceedings. Testifying under oath is always risky for a sitting president.

Under these circumstances, the risk to the President would be so great that it is likely that Harder's "cease and desist" letter is no more than the bully bluster used so often by the President in his former life in the real estate industry. But using this tactic from the Oval Office is far more dangerous than from Trump Tower.

Even Hulk Hogan's lawyer can't body slam the fire and fury of Michael Wolff's book -- or Steve Bannon's disdain.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 313942

Reported Deaths: 7240
CountyCasesDeaths
DeSoto21580258
Hinds20330415
Harrison17879309
Rankin13594278
Jackson13429246
Madison10088217
Lee9970174
Jones8370163
Forrest7670152
Lauderdale7188241
Lowndes6387146
Lamar622486
Lafayette6184118
Washington5332133
Bolivar4801132
Oktibbeha462198
Panola4582106
Pearl River4506146
Marshall4435103
Warren4386121
Pontotoc420172
Monroe4107133
Union410076
Neshoba4030176
Lincoln3962110
Hancock378486
Leflore3493125
Sunflower335990
Tate333384
Pike3316105
Scott315773
Alcorn312768
Yazoo311469
Itawamba299777
Copiah296865
Coahoma295179
Simpson294988
Tippah288168
Prentiss279760
Adams278782
Marion269080
Leake267473
Wayne262641
Grenada261386
Covington258281
George247848
Newton246261
Winston227081
Tishomingo226667
Jasper221048
Attala214273
Chickasaw207757
Holmes188873
Clay185254
Stone182433
Tallahatchie178541
Clarke177980
Calhoun170532
Yalobusha164238
Smith162334
Walthall133945
Greene130533
Lawrence128524
Montgomery126742
Noxubee126734
Perry126338
Amite123042
Carroll121828
Webster114532
Jefferson Davis107033
Tunica105226
Claiborne102430
Benton99525
Humphreys96533
Kemper95728
Franklin83623
Quitman80716
Choctaw76318
Wilkinson67230
Jefferson65528
Sharkey50217
Issaquena1686
Unassigned00

Alabama Coronavirus Cases

Cases: 531404

Reported Deaths: 10985
CountyCasesDeaths
Jefferson765501522
Mobile41036805
Madison34789503
Tuscaloosa25788453
Montgomery24340589
Shelby23449249
Baldwin21154308
Lee15882171
Calhoun14511314
Morgan14306279
Etowah13843353
Marshall12232223
Houston10570281
Elmore10068205
Limestone9974151
Cullman9676194
St. Clair9661243
Lauderdale9427241
DeKalb8831186
Talladega8227176
Walker7241277
Autauga6926108
Jackson6814112
Blount6678137
Colbert6306134
Coffee5519119
Dale4838111
Russell441538
Chilton4296112
Franklin426082
Covington4129118
Tallapoosa4023152
Escambia393677
Chambers3573123
Dallas3551152
Clarke351161
Marion3122101
Pike310977
Lawrence300398
Winston274473
Bibb260964
Geneva250477
Marengo249564
Pickens234461
Barbour231057
Hale223077
Butler216069
Fayette212562
Henry188844
Cherokee185245
Randolph180542
Monroe177540
Washington167339
Macon159650
Clay156756
Crenshaw152557
Cleburne148941
Lamar142535
Lowndes138853
Wilcox127130
Bullock122841
Conecuh110529
Perry107726
Coosa107628
Sumter104732
Greene92534
Choctaw60724
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