In a stinging 20-page brief, lawyers for publisher Simon & Schuster argued there is no contractual or constitutional basis to enjoin them from publishing Mary L. Trump’s forthcoming tell-all, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. And with some thousands of copies already printed and shipped to booksellers, neither is there any practical way to stop publication.
Simon & Schuster's June 30 filing answers a suit filed last week by Robert S. Trump, the brother of President Donald J. Trump, in New York State Supreme Court in Dutchess County. Among its proposed remedies, the suit seeks an injunction to block publication of the book on the basis of a sweeping confidentiality clause agreed to in 2001, when the estate of the president’s father, Fred Trump Sr., was settled. But in its brief, S&S lawyers point out the obvious: that the publisher is not a party to and is not bound by any confidentiality agreement with the Trump family.
“This failure to plead a cause of action bears emphasis—Plaintiff is seeking to silence one of the most prominent American publishers without alleging that it engaged in any actual wrongdoing at all,” the brief states. “To elide this pleading failure, Plaintiff claims that he should be awarded a prior restraint against Simon & Schuster on the grounds that Ms. Trump entered into the Settlement Agreement more than 20 years ago. But the presumption against prior restraints is not overcome merely because of the confidentiality provision in the Settlement Agreement, to which Simon & Schuster was not a party, and Plaintiff fails to cite a single case in which a prior restraint has been granted in such a circumstance. To the contrary, in case after case, courts across the country have consistently recognized that imposing an injunction in a case like this—where a publisher receives information from a source who allegedly violated a confidentiality agreement—would be unconstitutional.”
The filing comes on the very same day that New York State Supreme Court judge Hal B. Greenwald surprised observers by granting a Temporary Restraining Order blocking publication of the book. Greenwald has set a setting a July 10 appearance date. But the order could end sooner, as Both defendants in the case, author Mary L. Trump and S&S have appealed that order.
In its June 30 filing, S&S lawyers attack the Trump family's claim that the publisher is somehow bound by Mary L. Trump’s confidentiality agreement because they are acting as “an agent” of the author or “in concert” with her.
“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,” the brief argues, 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.”
That argument is bolstered by an affidavit from S&S CEO Jonathan Karp. “We did not learn anything about Ms. Trump signing any agreement concerning her ability to speak about her litigation with her family until shortly after press broke concerning Ms. Trump’s Book about two weeks ago, well after the book had been accepted, put into production, and printing had begun,” Karp told the court, adding that the book was formally accepted on May 7, at which point the author “lost any ability she otherwise may have had to prevent or delay the Book’s publication.”
Further, Karp says, “approximately 75,000 copies have been printed and bound and are ready for publication,” which includes shipments to retail booksellers—copies which S&S no longer maintains control of. “Once Simon & Schuster shipped [the books] in response to a purchase order," Karp explains, "title to the physical copies passed to the retailer or wholesaler.” The book is set for a July 28 publication.
That statement recalls federal judge Royce Lamberth’s June 10 decision declining to enjoin S&S’s publication of former national security advisor John Bolton’s memoir, The Room Where It Happened, because books were already available. "For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir," Lamberth wrote in his decision.
On the S&S website, Mary L. Trump's book is described as a “revelatory, authoritative portrait of Donald J. Trump and the toxic family that made him," and claims to offer insight into how Trump "became the man who now threatens the world’s health, economic security, and social fabric.” The publisher's catalog copy describes Mary L. Trump as a trained clinical psychologist as well as the president’s only niece.
And, S&S lawyers argue, Mary L. Trump's insights are protected political speech.
"Ms. Trump has a story to tell about her family, her personal experiences with, and insights into, the President of the United States, and the dubious financial dealings that provided the foundations for the President’s real estate empire," the brief concludes. "The American public has a right to information about the President’s claimed wealth—particularly as he has repeatedly touted his wealth as a credential for his presidency. A twenty-year-old Settlement Agreement to which Simon & Schuster is not bound should not interfere with the public’s right to read that information."
Meanwhile, also on June 30, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the Pen American Center filed a joint amicus brief in support of S&S.
"Far from the requisite showing of 'exceptional' circumstances that would justify a prior restraint, Plaintiff asserts a purported contractual right to enjoin further publication and dissemination of the book because it may 'contain material that could harm him' or members of his family, including the President," the amicus brief states. "But the existence of a confidentiality stipulation entered into by Defendant Dr. Trump, even assuming it is applicable and enforceable, does not remove this case from the ambit of the First Amendment, nor does it alter the legal standard applicable to the prior restraint Plaintiff seeks...And that confidentiality stipulation most certainly cannot serve as a basis to independently enjoin the Book’s publisher, Defendant Simon & Schuster, who was not a party to that agreement, from further publishing or disseminating the book."
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.
