In an unusually massive reply brief, Trump family attorney Charles B. Harder ripped publisher Simon & Schuster for rushing ahead with publication of Mary L. Trump’s explosive tell-all Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, urging the court to block both the author and publisher from publishing the book.
“There is no constitutional bar to an injunction enjoining a book that a party lawfully contracted never to write,” Trump family lawyers write in the brief. “At most there is simply a heightened standard for the court to examine the parties' agreement. While defendants here throw a plethora of cases at this court hoping one will stick to the wall, there is simply no constitutional prior restraint in this case. It is a mere contract dispute.”
The 83-page reply brief sets the stage for a highly-anticipated decision as early as Friday in New York State Supreme Court before judge Hal B. Greenwald. On June 30, Greenwald issued an Order to Show Cause and a Temporary Restraining Order blocking the author and her publisher, Simon & Schuster, from publishing the book, pending the July 10 hearing. But after an appeals court vacated the Temporary Restraining Order against Simon & Schuster, the publisher moved up the book's pub date by two weeks, to July 14 from July 28, with numerous details from the book now featured in the national media.
The release and reporting on the contents of the book makes granting the Trump family’s request to stop publication increasingly unlikely. The information in the book is no longer confidential, and courts generally do not issue injunctions, especially involving speech, that are obviously ineffective. Nevertheless, in their reply brief, Trump family attorneys double down on their request for an injunction restraining both the author and the publisher and blast S&S for moving up publication while the case was just days from a hearing.
“Does a book publisher, who, having paid for the purported right to publish the book, later receiving actual notice of the fact that the author has no legal right to publish the book, then have the right to rush ahead with publication and distribute the book with full knowledge of the prohibition on publication, and thereby escape your injunction that is entered against the author?” the brief asks. “The answer to that question is clearly no. And that answer controls this case.”
In one of the brief’s most Trumpian moments, Trump family lawyers actually lament the fact that not restraining the book would make it impossible for future politicians to use sweeping nondisclosure agreements to hide potentially damaging facts from the public. “At bottom, if Mary Trump’s position is accepted, it would mean that politicians could not enter into confidential relationships at all, even for the most legitimate of reasons, because the obligation would be terminated whenever elections come around,” the brief observes. “That is not the law, and cannot be the law.”
The filing also takes specific aim at Simon & Schuster’s role as the publisher of the book, arguing that they are in fact, despite the publisher's arguments to the contrary, acting as an agent of Mary L. Trump and should not be treated as a "news agency."
"Newspaper writers, at least in the United States, do not generally pay for news," the brief argues. "This is what distinguishes a book publisher like Simon & Schuster from a newspaper. Book publishers do not passively receive from sources information independently obtained (perhaps sometimes through wrongful means). Rather, book publishers pay their authors to create books under lucrative publishing contracts; the manuscripts are then edited by employees of the publisher, as well as the author, in a collaborative process, before publication."
In its June 30 brief, S&S attorneys called the difference in models between book publishers and newspapers a distinction without a difference. “This argument, which posits that Simon & Schuster can be bound by an agreement that pre-existed its relationship with Ms. Trump by almost twenty years and whose existence was unknown to it, is specious at best,” S&S lawyers argue in their June 30 brief, adding that the two are "independent parties that entered into an arm’s length transaction." And unlike a legally defined agent, "Simon & Schuster—not Ms. Trump—maintains the right to control the publication of the Book.”
Trump family attorneys go on to argue that no court has specifically extended "the special privileges" of news gathering to book publishing, and accuse S&S officials of "bad faith" actions.
"Most notably, Simon & Schuster deliberately shipped books out nine days after learning that about the existence of Mary Trump's contractual obligations," the brief states. "Simon & Schuster analogizes to the recent to the recent case of John Bolton, where 'the horse was out of the barn,' because the government had delayed filing suit and seeking an injunction. In fact, Simon & Schuster, knowing full well the owner of the horse had signed an agreement not to let him out, snuck out to the stables at midnight and deliberately let the horse out anyway."
In a July 2 brief, lawyers for Mary L. Trump insisted the case was not a mere contract case. "Plaintiff seeks an injunction that would restrain Ms. Trump from sharing insights she alone can share on the current President during his re-election. There may be no more serious First Amendment injury in American law," concludes Mary L. Trump's legal team, adding that "there are no circumstances here that would warrant such historic interference." And in a July 6 letter to the court, Mary L. Trump's lead attorney, Theodre Boutros, asked the court to immediately lift the Temporary Restraining Order entered against the author, noting that S&S's publication cannot be stopped.
With the hearing set for July 10, S&S is on track to publish the book on July 14, and has already gone back to press for a sixth printing, bringing the total number of copies in print to 600,000.
Clarification: this story has been edited to reflect that while the parties have requested oral argument, no appearance is required on July 10. The court will rule on the briefs submitted.
