Yesterday, almost all of the political world was abuzz with the Trump-Bannon feud that exploded out of a new book from Michael Wolff and dominated the news cycle. Almost all, with a noticeable exception, the Washington Post reports — Steve Bannon himself. The former White House advisor conducted his usual satellite-radio broadcast on politics and avoided the subject, only addressing it when a listener called into the show:
Bannon’s comments on Breitbart News Tonight, which is broadcast on Sirius XM radio, came just hours after Trump said his former chief strategist had “lost his mind” and had his lawyer issue a cease and desist letter designed to shut Bannon up.
“The president is a great man,” said Bannon, in response to a caller’s question about the extraordinary rift that developed Wednesday between the two men. “You know I support him day in and day out.”
That’s a pretty low-key response to the public-relations missiles that flew out of the White House. Trump ripped Bannon for having “lost his mind” after quotes attributed to Bannonhim in Wolff’s book accused Donald Trump Jr and son-in-law Jared Kushner of “treasonous” behavior. According to the White House statement, Bannon never had anything to do with Trump’s election or any successes in the White House, effectively writing his former advisor out of the picture entirely.
Perhaps Bannon hoped to lower the temperature on the feud by avoiding the topic. Or maybe his attorneys have advised him to keep his mouth shut about it. Late yesterday, Trump’s personal attorneys sent Bannon a cease-and-desist letter based on his non-disclosure agreement and said that “legal action is imminent”:
Trump attorney Charles J. Harder of the firm Harder Mirell & Abrams LLP, said in a statement, “This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book 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. Legal action is imminent.”
In the letter to Bannon, Harder, writes, “You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book.” …
In the letter, Trump’s attorney writes, “Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity,” although no dollar amount is disclosed.
The letter then cites parts of Paragraph 8 of the Agreement: “Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach.”
Bannon, like everyone else in Trump’s circle, has to sign a non-disclosure agreement (NDA) that heavily proscribes any negative commentary on Trump or his family. NDAs have gotten a bad reputation of late, and for good reason, but they are enforceable in many circumstances. Courts might take an interest as to whether a personal NDA can be enforced for commentary related to a public official, though, as the public interest in transparency could well eclipse any private agreement for silence. That might depend on the commentary too, and the quotes from Bannon in Wolff’s book (at least thus far) seem more like vituperation than illumination. Bannon would be well advised to avoid the topic altogether until his legal team has a grip on where this NDA-based legal action is going.
However, Trump’s personal attorneys might be kept pretty busy too. Wolff claims that he conducted over 200 interviews with White House insiders from his vantage point of a West Wing couch granted to him by Trump himself:
Since the new White House was often uncertain about what the president meant or did not mean in any given utterance, his non-disapproval became a kind of passport for me to hang around — checking in each week at the Hay-Adams hotel, making appointments with various senior staffers who put my name in the “system,” and then wandering across the street to the White House and plunking myself down, day after day, on a West Wing couch.
The West Wing is configured in such a way that the anteroom is quite a thoroughfare — everybody passes by. Assistants — young women in the Trump uniform of short skirts, high boots, long and loose hair — as well as, in situation-comedy proximity, all the new stars of the show: Steve Bannon, Kellyanne Conway, Reince Priebus, Sean Spicer, Jared Kushner, Mike Pence, Gary Cohn, Michael Flynn (and after Flynn’s abrupt departure less than a month into the job for his involvement in the Russia affair, his replacement, H.R. McMaster), all neatly accessible.
The main problem attorneys on all sides will have will be telling fact from fiction. Wolff plays fast and loose with his facts and conclusions, and he has a reputation for creative story-telling, to put it politely. Paul Farhi offered an overview yesterday of Wolff’s questionable credibility:
His reliability has been challenged before – over quotes, descriptions and general accounts he’s provided in his many newspaper and magazine columns and in several books. Wolff has even acknowledged that he can be unreliable: As he recounted in “Burn Rate” – his best-selling book about his time as an early Internet entrepreneur – Wolff kept his bankers at bay by fabricating a story about his father-in-law having open-heart surgery. …
Wolff followed up “Burn Rate” by taking over the media column at New York magazine, where he almost immediately ran into trouble. Judith Regan, then a hotshot book editor who had been a classmate of Wolff’s at Vassar, vigorously disputed almost every paragraph of Wolff’s column about her. She said she hadn’t had a personal conversation with Wolff in 30 years.
Wolff’s response: “She doesn’t speak to me. … I suppose the world is full of people who no longer speak to me.”
New Republic columnist Andrew Sullivan accused Wolff of putting words in his mouth when Wolff wrote in 2001 that Sullivan “believes that he is the most significant gay public intellectual in America today.” Sullivan said he never made any such claim.
See the problem? Before anyone can get nailed in an NDA action, plaintiff’s attorneys have to show that they actually disclosed. The risk for Trump’s attorneys will be that they may end up corroborating Wolff’s accounts in their attempts to nail Bannon and others for NDA violations. Even if they debunk the specifics in the book, however, they still risk dredging up testimony that may be just as embarrassing to the Trumps, if not more so. Discovery is a tricky process, and Trump’s attorneys will have to calculate the risk-reward factor in pursuing any of Trump’s former aides over a book that may end up discrediting itself.
Meanwhile, Bannon’s playing it smart, legally and politically, by keeping his head down. We’ll see how long that lasts — and whether Wolff has any more Bannon nuggets in his book.