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Odds that George Conway gets his wish to review an advance copy of Mary Trump’s book Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man (affiliate link) went up substantially yesterday as Presiding Justice Alan D. Scheinkman of the Supreme Court of New York’s Appellate Division revoked the temporary restraining order against Simon & Schuster.
The president’s brother Robert Trump, the putative plaintiff seeking to halt publication of the tell-all about the president and his family, argued in his motion for a TRO that Simon & Schuster is an “agent” of Mary Trump. Which was probably news to her actual agent, Jay Mandel of WME, who sold the book to S&S at auction. But more to the point, none of the case law has treated the publisher as an “agent” of an author, and saying it doesn’t magically make it so. The government was unable to persuade a court that S&S was John Bolton’s “agent” two weeks ago, and the Trump family won’t have any better luck this time.
“While the plaintiff has alleged, in effect, that S&S is Ms. Trump’s agent, the evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to succeed in establishing that claim,” Justice Scheinkman wrote. “So, while the plaintiff is entitled to have the temporary restraining order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.”
Because S&S is neither party to the confidentiality agreement entered into when the family settled its legal dispute over patriarch Fred Trump’s will, nor an agent of Mary Trump, it can’t be bound by the 20-year-old document.
S&S is not a party to the settlement agreement. The only basis offered by the plaintiff to extend the temporary restraining order to S&S are the allegations that S&S “intends to act” on Ms. Trump’s behalf in causing the publication of the book and that S&S is acting at Ms. Trump’s direction and in concert with her. However, these allegations are conclusory and not supported by any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights.
And while this order only affects S&S, the claim for injunctive relief against Mary Trump isn’t looking all that steady either. Noting that “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,” the court says it may have to review the manuscript in camera to weigh the public interest against the family’s right to enforce a decades-old contract meant to protect its privacy.
So the order against Mary Trump stands, in modified form, pending a hearing next week and with the caveat that the lower court’s TRO “should be reassessed by the Supreme Court in view of the defendants’ answering papers.” Mary Trump’s counsel, First Amendment lawyer Ted Boutros, promises to file that answer today.
“It is very good news that the prior restraint against Simon & Schuster has been vacated, and we look forward to filing our brief tomorrow in the trial court explaining why the same result is required as to Ms. Trump, based on the First Amendment and basic contract law,” Boutros said yesterday.
But while the outcome of that hearing may impact Mary Trump’s ability to do publicity, it won’t restrain S&S from publishing. Which brings us back to George Conway, and the half of DC which will probably get its hands on an advance copy of the book within days.
Two weeks ago, the court refused to restrain publication of Bolton’s book based on the oft cited precedents of The Horse Is Out of the Barn and The Genie Is Out of the Bottle (cf. You Can’t Put the Toothpaste Back In the Tube). Too Much and Never Enough is scheduled for release on July 28, which means that it’s already started to ship to publishers and reviews and excerpts will soon appear in every major paper in the country. At which point the issue of prior restraint will be moot, because it won’t be prior any more.
So, while there are important First Amendment principles at stake here, as a practical matter, the TRO on Mary Trump is irrelevant. The book is coming out, and the only thing Donald AHEM we mean Robert Trump has achieved here is to bump it up to Number 4 on the Amazon bestseller charts. Which is just three spots behind John Bolton’s book.
Well played, President Streisand Effect.
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.