Mary Trump’s book will be published.
The Temporary Restraining Order in the Trial Court
Only a day ago, a New York State trial court issued a temporary restraining order (“TRO”) temporarily blocking publication of a tell-all book by Mary Trump, the president’s niece, and her publisher, Simon & Schuster (“S&S”). The book, entitled Too Much and Never Enough; How My Family Created the World’s Most Dangerous Man, is scheduled for publication on July 28.
Robert Trump, the president’s brother, brought the suit based on a non-disclosure agreement (the “NDA”) that Robert, the president, and Mary (and other family members) all signed when litigation involving the estate of the president’s and Robert’s father, Fred Trump, was settled two decades ago. Of course, it is widely assumed that Donald Trump pushed Robert to file the present suit titled Trump v. Trump. The NDA purported to bind Mary’s “agents” as well as Mary.
Mary and S&S took an emergency appeal. Less than what it appeared, the TRO was to restrain Mary and S&S pending a hearing on July 10 for a preliminary injunction. The back-story is that Mary’s father (Fred the Younger) had died and the elder Trumps circled the wagons to cut out Fred the Elder’s grandchildren, including Mary, thus the litigation two decades ago.
Wednesday night’s Decision
The New York Supreme Court (not the high court of the state), Appellate Division, per Presiding Justice Alan D. Scheinkman, without yet having received briefs on behalf of Mary or S&S, issued an order reversing the TRO as to the publisher, S&S, which may proceed with the publication of the book. The order is short enough and worth reading.
The basis for the ruling is, first of all, that S&S was not a party to the NDA and is not an agent of Mary Trump. The only basis for restraint of the publication would be the NDA, and S&S was not a party to the NDA. So the important news here is that the book is coming out. Whether the elder Trumps can ever get damages from Mary is for another day.
While the TRO temporarily remains in effect as to Mary Trump pending the July 10 hearing in the trial court on the request for a preliminary injunction, Justice Scheinkman expressed skepticism about any restraining order against Mary. He noted the strong First Amendment policy against prior restraints. He also noted that a factor in considering whether to enforce such an NDA is whether it contains reasonable limitations as to time and place. This one does not, a telling point against the effectiveness of the NDA 20 years later. Here is what he said on that score:
The confidentiality agreement here does not have any temporal or geographic limitation. The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election. Drawing the appropriate balance may well require in camera review of the book sought to be enjoined. Stated differently, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States.
In my view, the unreasonableness of the lack of any time limitation in the NDA, which sounds at least in part in antitrust law and policy, could be a defense to the claim by the elder Trumps for damages. Damages are not Donald and Robert’s main interest, otherwise Donald, not Robert, would have signed the complaint.
Donald Trump’s Two Bad Options
This leaves Donald Trump and his compliant brother Bob with one or both of two bad choices.
First, they can show up at the July 10 hearing in the lower court, but all they can get there is more affirmation that Mary might have violated the NDA. Indeed, the trial court is apt to deny the application for the preliminary injunction, and keep the post-publication suit for damages, which, post-election, the elder Trumps are not apt to pursue, as that would surely result in Donald Trump being subject to sworn depositions. If I were Mary Trump I would not be too worried about ever having to pay damages to Uncle Bob, or, less yet, Uncle Don.
Or, second, they might take an emergency appeal to the only court left, the New York Court of Appeals, the high court of the state. The higher they go, the less likely it is that a court will uphold any prior restraint against anybody.
A Note on New York’s High Court
And, the New York Court of Appeals is not a conservative bastion full of Alitos — all seven of the judges of the New York Court of Appeals are appointees of Governor Andrew Cuomo. Lots of luck.