President Donald Trump’s threat to sue author Michael Wolff for defamation and libel for embarrassing allegations made in his new book Fire and Fury: Inside the Trump White House is nothing but a scare tactic. There’s little chance Trump will make good on his challenges, chiefly because he won’t want the salacious details regurgitated on the record in a court of law.
Trump has used the threat of a libel suit to get authors, journalists, and media to back off printing damaging or critical information about him or his family in the past. Wolff’s publishing house, Henry Holt and Co., appears to believe the president has no case because it moved up the release date to today. The book had already garnered tremendous pre-order sales and was labeled a bestseller prior to being published.
Trump’s attorney, Charles Harder, sent a cease-and-desist letter Wednesday to the publisher and author making the legal argument that the book was defamatory and libelous and that there was “actual malice” behind the claims in the book.
The cease-and-desist letter itself has no legal standing to compel the actions of the publisher or the author. It is a warning shot that publication of the book could subject those players to a civil lawsuit from the president. In this case, the letter only emboldened the publisher to get the book to the marketplace even sooner.
The president’s lawyer also sent Steve Bannon a cease-and-desist letter and threatened him with legal action. Early released excerpts from the book infuriated Trump, who responded that Bannon had “lost his mind.” Bannon criticized the pre-election meeting that Donald Trump Jr. and Paul Manafort held at Trump Tower with apparent Russian operatives who allegedly had dirt on Hillary Clinton. Bannon slams them for not calling the FBI to report Russian contact and called the meeting “unpatriotic” and “treasonous.” He also said that Donald Trump Jr. would “crack like an egg on national TV” and that the Mueller investigation would uncover money laundering. So far, Steve Bannon has not denied making these statements.
Trump reportedly gave Michael Wolff free range in the White House to observe the happenings of his administration. A libel lawsuit would put the president in the position of proving that what Wolff says he observed and heard are false. Even though the White House is saying the book is a “complete fantasy” and “full of tabloid gossip,” the president would actually have to substantiate these claims in a court of law if he went forward with a libel suit.
A libel suit can award monetary compensation if a person is damaged from published statements, such as if they injure a person’s career, livelihood, standing in the community, or reputation. There is an extremely high bar for a defamation suit against public officials. Not only does the public official claiming injury have to prove that statements made against him are defamatory, there must be proof of “actual malice.” In 1964, the Supreme Court ruled in the famous case New York Times v. Sullivan that the First Amendment also protects the publication of false statements about public officials unless the statements are made with actual malice, which is a reckless disregard for the truth.
The First Amendment and case law have established that individuals can say almost anything they want about a public official or figure. The only outlawed speech is uttering threats of physical harm or death toward another individual. Criticism and damaging opinions have long been considered protected speech when made against public officials.
The author of the book insists he spoke with Trump on the record during the campaign and inside the White House and that Trump knew the conversations were for potential publication. Conversely, Trump tweeted that he “authorized Zero access to White House” for Michael Wolff and “never spoke to him for book.” For Michael Wolff to prove the president wrong in court, the author would simply testify on his own behalf as to his observations and conversations with individuals mentioned in the book, and let the judge decide his credibility. Wolff can also defend himself by bringing tapes and notes from his interviews into court to validate his facts.
Wolff told the media he was “in every way comfortable with everything I’ve reported in this book” and that he handled the writing like a journalistic assignment. Wolff confirmed he has recordings and notes related to the information he published. He stands by his new book and appears to be unbowed by the threat of litigation from the commander-in-chief.
Stacy Schneider is a New York City-based trial attorney and author who has provided legal analysis for Fox News, Fox Business News, CNN and HLN for more than a decade. She is the recipient of the Thurgood Marshall Award for Exemplary Service to the Cause of Justice in the United States.