Kamis, 04 Januari 2018

Trump Can Sue Bannon. Winning’s Another Matter.

Steve Bannon talked to a guy. That guy wrote a book. The subject of the discussion was displeased with the book. His lawyers say that Bannon violated his non-disclosure agreement and that the book must not be published. If it is published, they say, Bannon will owe the subject a lot of money.

For such a simple series of statements, there’s actually quite a lot to unpack here, but pretty much none of it bodes well for the subject. We’ll start near the end, because that’s actually where all the interesting stuff is, but trust me, we’ll cover it all.

“His lawyers say that Bannon violated his non-disclosure agreement.” So this brings up a few questions. What was his non-disclosure agreement? Who was it with? What was he not supposed to disclose? Easy questions, sort of (I’ll get to the complication later). The lawyers in question are for the Trump Organization and the Trump Campaign. According to them, the non-disclosure agreement was between Bannon and those entities. As for what he was not supposed to disclose, that’s pretty vague, but let’s assume it’s “anything about the Trump Organization, the Trump Campaign, or the Trump Presidency,” just to cover all our bases.

Timing here is crucial. If Bannon had left the campaign and given this interview the day before Election Day, he’d be out of luck. The lawyers would be right, and they’d take him to the cleaners. They could get lots of money from him. What they could not do is stop publication of the book. “Prior restraint,” as that is called, is severely frowned on by courts, even in some pretty extreme cases. It doesn’t play well with the First Amendment. Here, the fatal flaw is simple: Bannon didn’t write the book. He gave an interview. The author did not sign a non-disclosure agreement. No court in the country is going to stop the publication of a book because someone the author interviewed violated a non-disclosure agreement.

But that’s not what happened here. Bannon did not give the interview the day before Election Day. He gave the interview after being a senior White House official performing senior White House duties for several months. That is an important distinction. Now there is a very strong public interest in his ability to inform the public about what he did and observed in his official capacity as a public servant in the White House.

Alas, there is no “public interest” exception to non-disclosure agreements per se, but there is a cousin (of sorts) called “substantive unconscionability.” This happens when a contract so favors the more powerful party that it “shocks the conscience,” and one of the typical examples of such a contract given by judges is a contract that “contravenes the public interest or sound public policy.”

That’s where we are now. If the Trump Organization actually attempted to sue Bannon for giving this interview (and therefore violating his non-disclosure agreement), the judge would have to wrestle with the question of whether a contract that effectively gagged one party from informing the public about his experience working in the most important public office in the land contravenes the public interest to such a degree that it shocks the conscience. To my knowledge, no court has ruled on anything vaguely resembling this controversy, but if I were to pick a fact pattern I thought most likely to yield a finding of substantive unconscionability due to the public interest, I’d be hard-pressed to find a better candidate.

I will add one caveat here, though, before moving on. This issue really only arises when Bannon talks about his work in the White House. Even now, it is arguable that he is still liable for breach of contract for talking about what happened on the campaign trail. So this might not get him completely off the hook.

Since we’re here, though, we have to look not only at what non-disclosure agreements he is being accused of violating, but what non-disclosure agreements he could be accused of violating. When he received his security clearance, he would have been required to sign a non-disclosure agreement that required him, among other things, to vet any public remarks he would make about his work in the White House through a process known as “prepublication review,” likely at the Department of Justice, which typically holds the security clearances for Cabinet members and White House staffers (although whether that is still true is unclear, as records released to my client in response to a FOIA lawsuit over such matters suggest that the current administration might not involve DOJ in the same manner).

This is where it can get tricky, but in the end it doesn’t really yield a different result. If Bannon had written the book without putting it through prepublication review, the government could definitely sue him and secure a court order entitling it to all of the royalties from the book (although it still could not stop the publication itself), even if it did not include a single classified word. That is what happens when clearance holders violate their non-disclosure agreements. Witness the case of the Navy SEAL who claimed to have shot Osama bin Laden, wrote a book about it, and then had to pay the government $6.6 million because he didn’t vet it. If Bannon had been paid to do the interview and he did not vet his talking points, he could be sued for whatever he was paid. But since he did not write the book, the government cannot touch the royalties, and the law does not entitle it to any sort of punitive damages, so this too is a non-starter.

Steve Bannon talked to a guy. That guy wrote a book. The subject of the discussion was displeased with the book. His lawyers say that Bannon violated his non-disclosure agreement and that the book must not be published. If it is published, they say, Bannon will owe the subject a lot of money. They are most likely wrong. And we really don’t want them to be right.

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