FAN 173 (First Amendment News) Lawyer for Henry Holt & Michael Wolff Rebuffs Trump Cease & Desist Demands

Elizabeth A. McNamara (Davis Wright Tremaine)

In a categorical rebuff of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt, their lawyer Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. Here are a few excerpts from the text of that three-page letter sent by Ms. McNamara to Mr. Harder:

  • No defamation identified: “Though your letter provides a basic summary of New York libel law, it stops short of identifying a single statement in the book that is factually false or defamatory.”
  • Accurate reporting“[A]s President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff’s book. We have no reason to doubt — and you letter provides no reason to change the conclusion — that Mr. Wolff’s book is an accurate report on events of vital public importance.”
  • President’s ‘bully pulpit’ & ability to respond: “We have no reason to doubt . . . that Mr. Wolff’s book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the ‘bully pulpit’ at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it.”
  • False light invasion of privacy: Re New York law of false light invasion of privacy claim: McNamara stressed that such a claim doesn’t  exist under New York law. Additionally, she noted that even if such a claim did exist in New York law: “it is patently 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.”
  • Re document preservation, Ms. McNamra stressed that her clients “will comply with any and all document preservation obligations that the law imposes on them.”
  • Charles J. Harder

    President’s duty to preserve documents: “[W]e must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regarding himself, his family members, their businesses, the Trump campaign, and his administration, and must ensure all appropriate measures to preserve such documents are in place,” McNamara wrote. “This would include any and all documents pertaining to any of the matters about which the book reports.”

  • “Should you pursue litigation against Henry Holt or Mr. Wolff, we are quite confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign, and his administration will prove particularly relevant to our defense.”
  • No apologies: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”
Related

→ Porter Anderson, Macmillan CEO Memo to Employees in Response to Trump’s Cease-and-Desist Letter, Publishing Perspectives, January 8, 2018

 →Robert Barnes, Trump faces uphill battle in trying to block critical book, legal experts say, Washington Post, January 4, 2018

 →FAN 99.2, Trump on Libel Law & Freedom of the Press, February 27, 2016

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