In a letter dated August 15th, Simon & Schuster told Trump exactly what he can do with his impotent legal threats.
The threats, contained in a letter to the head of S&S and to three other women at Omarosa’s publisher (and S&S subsidiary), Gallery Books, stated that because of Omarosa’s NDA with Donald, her book could not legally be published. Representing “The Company” (Donald J. Trump for President, Inc.), his legal representatives write:
The Book, including the excerpts referenced above, which you have publicized as a “stunning tell-all and takedown,” violates several provisions of Ms. Manigault-Newman’s written agreement with the Company (the “Agreement”).
The NDA is boilerplate “you shall not disclose confidential information or disparage Mr. Trump (notice they don’t call him “The President”), his family, his company, etc.
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The reason Trump is not designated as “The President” is because the NDA of which they speak was Omarosa’s CAMPAIGN NDA, not the illegal, unconstitutional, and unenforceable White House NDA. In other words, this NDA would stand in full force of law, whether or not Trump won the election.
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They continue:
Now that you are aware of these contractual provisions, and Ms. Manigault-Newman’s breaches thereof, the Company will have claims against you, and all persons working in concert with you, should you proceed with publishing and selling the Book.
As we all know, the book was published the very next day.
And the day after that, this scathing (and supported by case law) response was sent to trump’s lawyers:
Re: The Trump Campaign’s Letter
Dear Mr. Harder:
I write as counsel for Simon & Schuster, Inc. and Gallery Books (collectively, “S&S”) in response to your letter dated August 13, 2018, concerning your client, President Donald J. Trump’s Presidential campaign, Donald J. Trump for President, Inc. (the “Trump Campaign”). Your letter recounts at great length the details of a non-disclosure agreement between former White House Senior Staffer Omarosa Manigault-Newman and the Trump Campaign (the “NDA”), and threatens that publication of Ms. Manigault-Newman’s book, Unhinged: An Insider’s Account of the Trump White House (the “Book”), will subject S&S to “substantial monetary damages and punitive damages” for various legal claims arising from the Book and the NDA. My clients will not be intimidated by hollow legal threats and have proceeded with publication of the Book as scheduled.
Mr. Trump is the President of the United States, with a “bully pulpit” at his disposal. To the extent he disputes any statements in the Book, he has the largest platform in the world to challenge them. As the Supreme Court observed in New York Times v. Sullivan, “debate on public issues should be uninhibited, robust, and Wide-open, and that may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” 376 US. 254, 270 (1964). While your letter generally claims that excerpts from the Book contain “disparaging statements,” it is quite telling that at no point do you claim that any specific statement in the Book is false. Your client does not have a viable legal claim merely because unspecified truthful statements in the Book may embarrass the President or his associates. At base, your letter is nothing more than an obvious attempt to silence legitimate criticism of the President. S&S will not be silenced by legal threats grounded in vague allusions to “disparaging statements.”
The letter goes on to point out some specifics, and ends on this:
Put simply, the book’s purpose is to inform the public. Private contracts like the NDA may not be used to censor former or current government officials from speaking about non-classified information learned during the course of their public employment. See McGahee v. Casey, 718 F.2d 1137, 1142 (DC. Cir. 1983). Nor could the NDA support censorship of a publisher, like S&S, that legitimately reports on information that is plainly newsworthy and highly relevant to matters of public concern. The government has no legitimate interest in censoring such materials and no court would support the Presidential campaign of a sitting US. President in silencing a former government official like Ms. Manigault-Newman or her publisher. To do so would be a perversion of contract law, a prior restraint, and a plain violation of the First Amendment.
Now, Ms. Omarosa-Manigault still has her individual fight with Trump over her NDA, which Trump has decided to send to arbitration.
In a ruling in the case of Jessica Denson, a former Trump campaign staffer who filed a lawsuit last year alleging sexual discrimination and harassment while working for the campaign, the judge ruled that Denson's harassment claim was not subject to out-of-court arbitration under the agreement.
The case could have significant effects on the results of future arbitration cases filed by the Trump campaign against former staffers, including that of Omarosa Manigault Newman, the former White House staffer who made headlines this week with the release of a tell-all book about the Trump administration.
Manigault Newman has been targeted for arbitration over claims made in her book and on her press tour, with the Trump campaign reportedly seeking millions in damages.
Which, I assume, means that if Trump wants to sue Omarosa over her White House NDA, it will be a PUBLIC trial, with full discovery. Which kind of defeats the purpose of……….keeping things quiet.
This also has potential ramifications for ALL EX-employees of Donald Trump, if he used similar NDA’s with them.
I love it when Donny gets burned. Nobody deserves it more than he.
Next up for Donny (and also published by Simon & Schuster):
SIMON & SCHUSTER TO PUBLISH BOB WOODWARD’S
FEAR: TRUMP IN THE WHITE HOUSE
New York, NY, July 31, 2018—Simon & Schuster will publish FEAR: Trump in the White House by Pulitzer Prize-winning journalist and bestselling author Bob Woodward on September 11, 2018, it was announced today.
With authoritative reporting honed through eight presidencies from Nixon to Obama, Woodward reveals in unprecedented detail the harrowing life inside Donald Trump’s White House and how the president makes decisions on major foreign and domestic policies. Drawing from hundreds of hours of interviews with firsthand sources, contemporaneous meeting notes, files, documents and personal diaries, FEAR brings to light the explosive debates that drive decision-making in the Oval Office, the Situation Room, Air Force One and the White House residence.
“Fear is the most acute and penetrating portrait of a sitting president ever published during the first years of an administration,” said Jonathan Karp, President and Publisher of Simon & Schuster. “This is the inside story on President Trump as only Bob Woodward can tell it.”
The source said that all the interviews for this book were recorded with the permission of the respective sources. Trump did not sit down for an interview with Woodward, the source said, but his last interview with the author in 2016 inspired the title.
"Real power is, I don't even want to use the word, fear," Trump told Woodward and Robert Costa, national political reporter at the Washington Post.