Monday, July 6, 2020
More NDA Problems for the President
We commented here and here on the President's attempt to enforce non-disclosure agreements (NDAs) signed by John Bolton. Long-time readers might also recall the President's attempt to enforce his non-disclosure agreement with Stormy Daniels, which we addressed here. Now, the Trump family is asking a New York court to impose a prior restraint enjoining the publication of the President's niece's new book, Too Much and Never Enough: How My Family Created the World's Most Dangerous Man. The book, which is due out on July 28th, is already the #1 top seller on Amazon. The New York Times provides the background to the case here.
A New York Appeals Court has already lifted a temporary injunction against the book's publisher. This post focuses on Mary Trump's brief in opposition to the Robert Trump's motion for a preliminary injunction and temporary restraining order. Specifically, we are interestted in Mary Trump's arguments that address the likelihood of plaintiff's success on the merits of his claim that Mary Trump, through publication, violates the terms of her NDA from 2001.
Mary Trump's arguments are a bit complicated and also overlapping, but I think they can be summarized as follows:
- The confidentiality agreement that was part of the parties' 2001 settlement agreement is inapplicable to Mary Trump's book and unenforceable;
- The entire Settlement Agreement is void because it was induced through fraudulent valuations only made public through a New York Times expose published in 2018 and summarized here;
- The confidentiality agreement is too general to constitute a waiver of Mary Trump's First Amendment rights;
- Plaintiff and other family members have themselves made statements that, on their current reading of the confidentiality agreement would violate the confidentiality agreement;
- Confidentiality agreement should not be construed to be of infinite duration, and this one has served its purpose and expired; and
- The court must consider the public interest in disclosure where one party to the confidentiality agreement has subsequently become President of the United States.
Those arguments will all be relevant to the Court's determination of whether Mary Trump has violated the NDA's terms. If she has, it is still unlikely that the the remedy will be a prior restraint on the publication of the book, especially since the publisher is not bound by the NDA.
There would also seem to be pros and cons to the choice of plaintiff in this case. On the one hand, the optics of the President seeking to stifle his niece would not have been great. On the other hand, the President has a much stronger irreparable harm that does the plaintiff, the President's brother. Harm to the plaintiff's reputation might be remedied through a payment of damages, but if the harm to the President himself might be far more consequential and nearly impossible to prove.