Biglaw Partner Eviscerates Trump's Cease-And-Desist Letter

Trump threatens a lawsuit... the response is a devastating lesson in defamation law.

(Credit: Oli Scarff/AFP/Getty Images)

(Credit: Oli Scarff/AFP/Getty Images)

Tony Schwartz, the co-author of Donald Trump’s masterpiece, The Art of the Deal (affiliate link), went on Good Morning America on Monday and shared his concerns about a Trump presidency. It’s fair to say Schwartz is not a fan of the possibility. To put a finer point on it, he is profoundly worried about Trump’s “pathologically impulsive and self-centered” behavior.

At that point, we all synchronized our Swatches to countdown the inevitable Trump Organization cease and desist letter. Jason D. Greenblatt, the Trump Organization’s chief legal officer, had the letter out the door within hours. Now that’s efficiency — the kind of efficiency we need to bring back to our shores to make America great again!

But I digress.

In any event, Greenblatt’s letter is as brash as his client, demanding millions for defamation and being “very disloyal.” As Jane Mayer summarizes in The New Yorker:

Greenblatt demands that Schwartz send “a certified check made payable to Mr. Trump” for all of the royalties he had earned on the book, along with Schwartz’s half of the book’s five-hundred-thousand-dollar advance. (The memoir has sold approximately a million copies, earning Trump and Schwartz each several million dollars.) Greenblatt also orders Schwartz to issue “a written statement retracting your defamatory statements,” and to offer written assurances that he will not “generate or disseminate” any further “baseless accusations” about Trump.

But Schwartz’s lawyer, Davis Wright Tremaine’s Elizabeth McNamara, penned a response letter yesterday that basically asks Greenblatt to kindly look up defamation law before wasting her time with this:

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Your letter alludes vaguely to “defamatory statements,” “outright lies” and “downright fabrications,” but you do not identify a single statement by Mr. Schwartz that is factually false, let alone defamatory. Instead, it is self-evident that Mr. Trump is most concerned with Mr. Schwartz’s well-founded expressions of his own opinion of Mr. Trump’s character, as well as Mr. Schwartz’s accurately taking credit for the writing of The Art of the Deal, which you pointedly do not contest. Eed. note: emphasis in original was in italics.]

That pesky “opinion” thing. I guess this is why Trump’s so hot to “open up” the law to make it easier to sue the media for telling people what a tire fire of a foreign policy plan you have. But, alas, Trump’s glorious regime of protecting himself from ouchy words — seriously, people say the millennials are the coddled ones — is still several months off.

Feeling that she’d accomplished all of her goals in one paragraph, McNamara decided to offer her own opinion of Trump’s mismanaged convention:

The fact that Mr. Trump would spend time during the week of the Republican National Convention focused on settling a score with and trying to censor his co-author on a thirty-year-old book is, frankly, baffling, but only further underscores the very basis for Mr. Schwartz’s criticisms. In any event, the demands you make in the letter are without any foundation in law or fact. Mr. Schwartz will not be returning any of the advance or royalties from the Book, and he has no intention of retracting any of his opinions about the character of the Republican nominee for the presidency, nor does he have any obligation or intention to remain silent about this issue going forward.

You think that’s baffling, just wait until tonight, when Peter Thiel — a rich guy with his own idiosyncratic views on the press — takes the stage and tells the REPUBLICAN NATIONAL CONVENTION delegates that he’s gay. Obviously there are many pro-gay Republicans — Ted Olson and Justice Kennedy come most obviously to mind — but those folks are probably not embedded with the crowd who spent the whole week yelling at the stage about Benghazi and imprisoning Hillary Clinton.

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Setting aside your hyperbolic rhetoric, the sole statements by Mr. Schwartz that your letter cites are from the Good Morning America interview where he stated that he “suspect[s] there are quite a number of things that were false [in the Booki],” and that the Book is “full of falsehoods.” Your attempt to argue that these statements constitute a breach of Mr. Schwartz’s obligations under the publishing agreement for the Book is utterly nonsensical on its face, even apart from the fact that you have wrenched the statements out of the context in which they were made.

If you’re playing “Cease and Desist Response Bingo,” you can mark off “hyperbolic.”

After addressing what she characterizes as the “non-sequitur attacks… throughout the rest of your letter,” McNamara finally heard the call every Mortal Kombat aficionado knows well: FINISH HIM!

Your letter does contain one accurate statement. Mr. Schwartz is indeed “attempting to influence the public” by speaking out. Mr. Schwartz would be the first to acknowledge that he is doing exactly that, and he will not be bullied into silence on this issue by outlandish and baseless legal demands.

And… scene.

Damn. When it comes to public criticism, this has not been a good week to be a Trump Organization lawyer, huh?

(Both letters are available over the next two pages…)

Donald Trump Threatens The Ghostwriter Of “The Art Of The Deal” [The New Yorker]


Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.