President Donald Trump faces an extremely uphill battle in his attempt to prevent Michael Wolff’s White House tell-all book “Fire and Fury” from being published, with one legal expert telling TheWrap on Tuesday that his chances are “close to zero” of convincing a court to block the book’s publication.
Trump’s attorney, Charles Harder, fired off a cease-and-desist letter to Wolff and “Fire and Fury” publisher Henry Holt and Co. Inc., this week, demanding that they “cease and desist from any further publication, release or dissemination” of material from the book, an excerpt of which has already brought to light numerous embarrassing accusations about Trump.
But attorneys speaking to TheWrap on Thursday agreed that Trump’s chances of blocking the book are extremely unlikely.
The biggest hurdle facing Trump’s effort is that, as U.S. president, blocking the book from publication would constitute prior restraint, a First Amendment no-no for the vast part.
“It’s a government official asking for prior restraint on publication, which courts are loathe to grant,” Zachary Elsea, an attorney for Kinsella Weitzman Iser Kump & Aldisert, said. “And there’s been, with very narrow exception, basically a ban on it for most of the last century,” he added.
While rare exemptions have been made for prior restraint in cases where national security might be compromised, embarrassing claims about Trump don’t make the cut, according to Arthur Z. Schwartz, principal attorney at Advocates for Justice Chartered Attorneys, who told TheWrap, “There is not a chance in the world that it would be enjoined just because it makes the president look foolish.”
“The intent of the [cease-and-desist] letter, I believe, was to scare the publisher, and have it fear an expensive libel suit if publication was not halted,” Schwartz added. “Copies are already out, so that seems like a hopeless exercise in lawyer letter writing.”
Should Wolff and Holt decide to disregard the cease-and-desist letter — an extreme likelihood, given that Holt announced Thursday that it had bumped up the publication of “Fire and Fury” to Jan. 5 — Trump could seek a temporary restraining order from a court, but “the chances of success are close to zero” on that front, Elsea said.
Barring that, Trump could file a lawsuit for libel and defamation. On that front, too, Trump would face hurdles on multiple fronts. As a public figure, Trump would have to prove that Wolff knowingly spread lies and had a reckless disregard for the truth, which attorney Norman Pattis told TheWrap is “an impossibly difficult standard.”
Harder’s cease-and-desist letter asserts that Wolff’s book “admits in the Introduction that it contains untrue statements.” And, according to the New Republic, the “Fire and Fury” introduction does cop to a certain wobbliness.
“Many of the accounts of what has happened in the Trump White House are in conflict with one another; many, in Trumpian fashion, are baldly untrue. Those conflicts, and that looseness with the truth, if not with reality itself, are an elemental thread of the book,” the introduction reads, in part, according to the New Republic. “Sometimes I have let the players offer their versions, in turn allowing the reader to judge them. In other instances I have, through a consistency in accounts and through sources I have come to trust, settled on a version of events I believe to be true.”
But according to Elsea, that passage falls short of admitting a reckless disregard for truth.
“It sounds like he’s admitting that there were conflicting sources and doing what many reporters do — discrediting some, crediting others, and settling on a version for the story,” Elsea said.
The burden of proof could be the least of Trump’s headaches, should he ultimately decide to file suit, Elsea added. Attempting to prove that Wolfe displayed a willful disregard for the truth would require that top White House officials and the people named in the book would have to testify about the events detailed in “Fire and Fury,” bringing further attention to reports that Trump is already seeking to suppress.
“Which, I have to imagine, is not anything that the White House would be interested in doing… It’d just be turning the spotlight back on the White House, in effect probably amplifying a lot of what’s written in the book,” Elsea said.
And even if the president should prevail in a lawsuit, Pattis asked, “What are Trump’s damages?
“It’s not as though Wolff called the Pope a liar. Trump is our Buffoon in Chief,” Pattis added. “As near as I can tell, there aren’t many people who regard the man as truthful. Calling a liar a liar sounds an awful lot like telling the truth.”