David Post of The Volokh Conspiracy has found the reply to Trump’s cease-and-desist letter to Henry Wolff, author of Fire and Fury, and his publisher, and has nicely edited it to bring out the parts which makes Trump’s lawyers look like idiots, which I will now shamelessly borrow:
Henry Holt & Co., through its lawyer (Eliz. McNamara at Davis Wright in NYC), has sent a response [available here] to Trump’s cease-and-desist letter. It’s a nicely-crafted letter, worth reading as a small reminder that excellent legal prose does not have to be incomprehensible mumbo-jumbo. Some highlights:
“[Y]ou demand that my clients cease publication of the book and issue a full and complete retraction and apology. My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.” [Note the Oxford comma after ‘occur’ – nice! It’s part of what makes the sentence sound downright Churchillian.]
“Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory.”
“[W]e note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for ‘false light invasion of privacy.’ As you are no doubt aware” – Ouch! – “New York does not recognize such a cause of action. Not only is tis [sic] claim meritless; it is non-existent. In any event, it is patentily [sic] ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.” (emphasis in original)
Regarding Trump’s claim that Holt could be liable for “inducing” a breach of contract by Steve Bannon: “The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon’s responsibility – not Henry Holt’s or Mr. Wolff’s – to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment.”
And finally, in regard to the seven pages of document -preservation instructions in Trump’s letter: “[My clients] will comply with any and all document preservation obligations the law imposes upon them. At the same time, we must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regading himself, his family members, their businesses, the Trump campaign, and his administration, … including any and all documents pertaining to any of the matters about which the book reports.” That’s a nice turnabout.
Thank you, David. One of my best reads of the day. OK, so a lot of the rest was computer code…. it still made me laugh.
