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: 159036

Reported Deaths: 3879
CountyCasesDeaths
DeSoto10563104
Hinds10414204
Harrison7397113
Jackson6655128
Rankin6057107
Lee540396
Madison5120107
Forrest394786
Jones376188
Lauderdale3663147
Lafayette341053
Washington3321108
Lamar301950
Oktibbeha255262
Lowndes252867
Bolivar248084
Panola237353
Neshoba2280122
Marshall225051
Leflore211191
Monroe209778
Pontotoc208131
Lincoln200566
Sunflower194155
Warren183058
Tate180451
Union172926
Copiah170840
Pike166760
Scott161330
Yazoo161340
Itawamba159936
Alcorn159328
Pearl River158969
Coahoma155943
Prentiss154931
Simpson154053
Adams147252
Grenada145445
Leake141844
Holmes134461
Covington130040
Tippah130030
George129525
Winston128726
Hancock127641
Wayne123024
Attala122834
Marion121447
Tishomingo114043
Chickasaw110732
Newton110529
Tallahatchie99427
Clay96127
Clarke94853
Jasper87023
Stone82015
Calhoun79513
Walthall79330
Montgomery78426
Carroll75515
Lawrence74614
Smith74216
Yalobusha74228
Noxubee73317
Perry68726
Tunica63019
Greene62422
Jefferson Davis59617
Claiborne59216
Amite57615
Humphreys55219
Quitman5107
Benton50418
Kemper48018
Webster47714
Wilkinson40722
Jefferson38312
Choctaw3637
Franklin3635
Sharkey32917
Issaquena1214
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Alabama Coronavirus Cases

Cases: 256828

Reported Deaths: 3711
CountyCasesDeaths
Jefferson34214511
Mobile20299366
Madison13925150
Tuscaloosa13591156
Montgomery12659238
Shelby1095877
Baldwin9163137
Lee792566
Morgan710851
Etowah677467
Calhoun6695121
Marshall665757
Houston548239
DeKalb504738
Cullman472043
St. Clair451857
Limestone447546
Lauderdale436054
Elmore427564
Walker3818111
Talladega374457
Jackson350723
Colbert336443
Blount310043
Autauga287342
Franklin259734
Coffee254115
Dale242054
Dallas232932
Chilton230841
Russell22813
Covington227934
Escambia206131
Tallapoosa189191
Chambers185950
Pike162214
Clarke161819
Marion146136
Winston141924
Lawrence135336
Pickens127720
Geneva12638
Marengo125224
Bibb123938
Barbour120629
Butler118842
Randolph105922
Cherokee105524
Hale99732
Fayette96316
Clay93525
Washington93319
Henry8946
Monroe83811
Lowndes82129
Cleburne79914
Macon76522
Crenshaw72930
Conecuh72414
Lamar7138
Bullock70919
Perry6927
Wilcox64918
Sumter58922
Greene44218
Choctaw43519
Coosa3724
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