This is why Trump’s threat to sue Steve Bannon into silence could backfire disastrously

Let me explain to the president how legal precedents work.

CREDIT: SAUL LOEB/AFP/Getty Images
CREDIT: SAUL LOEB/AFP/Getty Images

On Wednesday, New York Magazine published excerpts from a book by Michael Wolff which, to put it mildly, do not paint Donald Trump in a favorable light. Among other things, the excerpts include several disparaging comments by former Trump campaign executive and chief strategist Steve Bannon — at one point, Bannon refers to Trump’s campaign as “the broke-dick campaign.”

Trump responded to Wolff’s reporting with a pair of letters from his attorneys — one to Bannon and one to Wolff’s publishers — claiming that Wolff’s book gives “rise to numerous legal claims including defamation by libel and slander, and breach of [Bannon’s] written confidentiality and non-disparagement agreement with our clients.” The letter to the publisher also reportedly demands that they stop publication and apologize to Trump.

If Trump actually does pursue legal action — it is far from certain that he will; Trump has a history of making empty lawsuit threats — he is unlikely to prevail. As the President of the United States, Trump is the epitome of a public figure and his actions are almost always a matter of public concern. Accordingly, Trump would have to overcome a very high legal bar to bring a defamation suit. Meanwhile, a confidentiality or non-disparagement agreement between Trump and Bannon is likely to be unenforceable in this context.

Trump’s threatened defamation suit would be controlled by the Supreme Court’s landmark decision in New York Times v. Sullivan, which established that individuals have broad freedom to speak about matters of public concern involving a public figure. As a general rule, a defamation suit by such an individual will not prevail unless the speaker made a false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Though it is possible that Bannon breached this standard, it is very unlikely — defamation suits by public figures rarely prevail, and for good reason. Moreover, the case in favor of protecting speakers like Bannon and Wolff is especially strong when they speak about the president. The public’s interest in knowing how the president conducts himself in office — or whether the president is even fit to have that office — is massive. The president’s interest in suppressing disparaging speech against him is far less weighty.

Similar legal analysis would control Trump’s efforts to enforce a confidentiality or non-disparagement agreement.

Trump has historically required employees to sign very broad non-disclosure agreements. One such agreement permanently banned employees and former employees from disclosing “any Confidential information” or from disparaging “the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any asset any of the foregoing own, or product or service any of the foregoing offer.”

Assuming that Bannon signed a similarly broad agreement, that agreement would be unenforceable to the extent that Trump wishes to keep Bannon from discussing information that Bannon learned or opinions that Bannon formed while Bannon was working in the White House. A series of Supreme Court decisions beginning with Pickering v. Board of Education establish that government employees have fairly broad First Amendment protections when they speak on matter of public concern.

The Roberts Court has shrunk these protections somewhat — at least for current government employees who engage in speech pursuant to their official duties. Bannon was also a political appointee, which means he has somewhat less protections and could have been fired by Trump for making disparaging comments. But Bannon is no longer a government employee, so this is not a case about whether Trump can fire Bannon, it is a case about whether Bannon can face legal sanctions for disparaging Trump.

The answer to this question is almost certainly no. As Pickering explains, courts need to strike a balance between a public employee’s interest “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Here, Bannon’s interest in informing the public about America’s highest elected official is great, while the government will hardly provide its services more efficiently if former employees are forbidden from criticizing the president.

So Trump can’t go after Bannon for discussing his interactions with Trump while Bannon was a government employee, but what of Bannon’s statements about the campaign?

Here as well, it is unlikely that Trump could enforce the non-disclosure agreement.

As a general rule, non-disclosure agreements are used to protect certain kinds of employer information — such as trade secrets or information about customers or clients — which an employee could learn while working for a company and then use to gain an unfair advantage while competing against that company. A presidential campaign, moreover, may have any number of legitimate trade secrets — such as algorithms for processing voter data or information about campaign donors — which could legitimately be protected by a non-disclosure agreement.

Trump, however, isn’t accusing Bannon of disclosing how the Trump campaign interpreted polling data in Wisconsin or how the campaign maintained its relationships with donors. He’s accusing Bannon of disclosing disparaging information against Trump as a person. This is not the sort of information that is typically protected by a non-disclosure agreement.

In the past, Trump’s non-disclosure agreements were governed by New York law. Assuming that Trump’s suit against Bannon would also be brought in New York courts, Trump could face another legal problem.

New York courts have held that non-disclosure agreements can be unenforceable if they violate “the public policy of the State of New York.” This is, admittedly, a vague standard. But it is broad enough that New York courts could conclude (and, indeed, are probably likely to include) that the public’s interest in being able to evaluate the fitness of the sitting president is so great that an agreement limiting the public’s ability to do so violates New York’s public policy.

Which brings us to the part about how Trump’s suit against Bannon could backfire.

Trump is, to say the least, not a popular figure. And he has left many disgruntled employees in his wake. Many of these employees, however, are probably discouraged from speaking out against Trump because they signed non-disclosure agreements in the past.

If Trump actually does sue Bannon, the result is likely to be a legal precedent establishing that former Trump employees (or, at least, a subset of them) are free to speak openly against Trump. That could open the floodgates to a rush of new information about Trump’s unfitness for the presidency.