Yesterday evening, “President Donald J. Trump and Donald J. Trump for President, Inc.” sent Steve Bannon a cease and desist letter threatening him with civil prosecution for “defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement.” Can they really do that?
Let’s do the easy one first. Donald Trump is the very definition of a public figure, so the standard in NY Times v. Sullivan applies: In order to win a defamation suit, Trump would have to prove that Bannon acted with “actual malice.” In other words, he would have had to either knowingly tell lies about Trump or tell lies with reckless disregard as to whether they were true or not. As a public figure, Donald Trump would bear the burden of showing that Bannon acted with actual malice and that is a very tough standard to meet, intentionally so.
It’s probably impossible in this case as, from what I have seen, most of what Bannon said seems to be either reasonably factually accurate or Bannon’s opinion. Mere opinion, however, is never defamatory. Bannon’s opinion that Donald Trump Jr.’s Russian meeting was treasonous might be wrong, but it’s just that, an opinion and so not actionable. His opinion that Donald Trump Jr. was unpatriotic and should have reported the meeting to the FBI is also opinion—and absolutely correct to boot—and so also not actionable.
So there is no case for defamation. What about the non-disclosure and non-disparagement agreement Bannon signed? Now it gets a little weird.
Donald Trump has been famous for years for forcing his employees to sign elaborate and comically one-sided non-disclosure and non-disparagement agreements. This paranoia extended to the campaign. Any Trump volunteer who wanted to so much as phone bank from home was required to agree to a five-page contract that purported to prevent the volunteer from disclosing any confidential information for a term of, well, a term of forever. Confidential information was defined as, among other things, “all information that Mr. Trump insists remain private or confidential.”
The agreement also prevented campaign volunteers from ever supporting another candidate (either in 2016 or 2020) so long as Mr. Trump remained in the race. The agreement even required campaign volunteers to prevent their employees from supporting anyone but Trump.
Finally, the agreement included a non-disparagement clause. “During the term of your service and at all times thereafter you hereby promise and agree not to demean or disparage publicly the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company . . . and to prevent your employees from doing so.”
All of this was enforceable both through damages and injunction. Plus, the agreement gave Trump—but not the volunteer—the right to choose arbitration or to sue in court to enforce the agreement.
We can safely assume that the agreement Bannon signed has similar terms; the letter sent by his attorney suggests as much. In the private sector, much of this might well be enforceable. But Donald Trump isn’t in the private sector anymore.
President Trump qua President Trump is bound by the First Amendment.
That doesn’t necessarily mean that confidentiality agreements are unenforceable. The CIA enforces them all the time. The leading case describing the First Amendment contours of the government’s ability to enforce confidentiality agreements is Snepp v. United States. In Snepp, an ex-CIA agent published a book—which contained no classified information—without going through the CIA’s pre-approval process. While the government could not enjoin publication of the book, the Court allowed the government to seize the author’s royalties.
Applying that rule to President Trump, the confidentiality agreement Bannon signed might allow for seizure of any profits Bannon made in his speech—apparently there were none—but it would not authorize any sort of injunction, or even damages.
But it probably would not allow for even that. The Snepp case turned on the government’s legitimate need to review books by ex-CIA employees before publication in order to prevent the release of classified information that might endanger legitimate, on-going governmental activities. The First Amendment is that much stronger—and the government’s interest that much weaker—when the information at issue is merely politically embarrassing.
Which brings us to the other potential plaintiff: Donald J. Trump for President, Inc.
There is no question that Trump for President is a private actor and is not bound by the First Amendment. This is why Trump for President can hold rallies and throw out people who are wearing the wrong t-shirts. So as between Trump for President, and Steve Bannon, the non-disparagement agreement ought to be enforceable . . . except for the public policy exception.
Courts will not enforce contracts that violate public policy. The most obvious case is a contract for something illegal. Courts will not, for example, enforce a contract for the sale of illegal drugs. Contracts limiting speech require courts to balance competing policies. A confidentiality agreement may prevent you from generally revealing information but it cannot prevent you from speaking with law enforcement or acting as a whistleblower.
So this agreement is far from watertight. If Trump for President had sought an injunction to prevent one of its volunteers from switching their support to Ted Cruz, they would have been laughed out of court. The same goes for the non-disparagement clause. Bannon’s case is slightly more complicated since he was one of the people running the campaign, rather than a volunteer. So a court might well have been inclined to enforce at least the confidentiality provisions . . . if it were October 2016.
The calculus is different in January 2018. There is a very strong public policy interest in supporting transparency in our political system and a very weak public policy interest in helping whoever happens to be in the White House avoid embarrassment.
Plus—and this is really the root of it—the whole thing stinks. There is something deeply disturbing about watching the president of the United States attempting to use the legal system to silence his critics. This is the kind of thing that “soft” despots do, not American presidents. It seems likely that any court would find that a contractual prohibition on “demeaning or disparaging” the president “at all times thereafter” is a gross violation of publicly policy and, therefore, unenforceable.
So, no, they probably can’t really do that.
Chris Truax is an appellate lawyer in California.
