Fire and Fury: Trump to Take “Strong Look” at Libel Laws

by: The Knowledge Group

January 16, 2018


President Trump, via lawyer Charles Harder, has told Michael Wolff and publisher Henry Holt and Co. to halt publication of the newly released book Fire and Fury.

The cease-and-desist letter indicates that Trump views the book—which questions Trump’s mental capacity—as defamatory. “We are going to take a strong look at our country’s libel laws,” Trump has also said, so that subjects of “false and defamatory” descriptions “have meaningful recourse” in court.

What a Strong Look Will Find: Actual Malice Standard and the Courts’ Disfavor for Prior Restraint

New York Times v. Sullivan (1964) and New York Times v. United States (1971; AKA “Pentagon Papers”) apply. The former establishes the “actual malice” standard: for libel, an author must have knowingly spread falsehoods or displayed reckless disregard for the truth. Trump, a public figure, would have the difficult challenge of proving actual malice to win a libel suit. Trump’s lawyer asserts it can be proven, because the book’s introduction admits to including accounts in the book that contradict each other.

Yet Pentagon Papers articulated “a heavy presumption against” the constitutionality of prior restraint—and this is so, even where details embarrassing to the state are concerned. President Nixon was widely believed to be the main party against the publication of the Papers, as Trump is in this case.

 “My Clients Do Not Intend to Cease Publication…”

Atty. Elizabeth McNamara, representing author and publisher, was unapologetic over the book’s inclusion of remarks from Trump’s former chief strategist Steve Bannon about Donald Trump Jr.’s meeting with Kremlin-linked people. McNamara notes that Trump’s letter summarizes New York libel law, without identifying any “factually false or defamatory” assertions in the book.

Both sides insist the other must retain any documents regarding the book and the interviews Wolff conducted as material for it.

Non-Disclosure Breach?

The cease-and-desist letter also claims the author and publisher induced Bannon to flout a non-disclosure agreement promising not to discuss Trump and the campaign.

But the Pentagon Papers court declined to fault the press for the breaches of others, and supported the public interest in receiving information.

And, like any public figure in similar circumstances, Trump would risk even more reputational stress by filing a libel suit.