by Paul Alan Levy
The lawsuit filed by Robert Trump against his niece, Mary Trump, seeking to block her from publishing a book that apparently has several damning facts to disclose about Robert’s brother, and Mary Trump’s uncle, our Dear Leader Donald J. Trump, is based on a non-disclosure clause that was part of the global settlement of the Trump family's litigation over the estate of Fred Trump twenty years ago. Robert Trump obtained a TRO against Mary Trump and her publisher, Simon & Schuster; the latter part of the TRO was overturned on appeal the very day that it was entered; but the preliminary injunction hearing is set for Friday. Simon & Schuster has moved up the publication date to Bastille Day.
Simon & Schuster opposed the TRO, supported by amici from book publishing and media industries, which stressed the breadth of the NDA and argued that it is against public policy, not to speak of the doctrine against prior restraints, to issue injunctions enforcing such broad NDA’s. But looking at the settlement agreement itself, I was struck by how narrow the NDA really was. Consequently, Public Citizen has submitted our own amicus brief in the case, urging the Court to apply the general rule that waivers of constitutional rights should be construed narrowly, and that, so far as we can see, none of the disclosures of which the lawsuit complains appear to run afoul of the NDA as properly construed. We also argue that, because the plaintiff has proclaimed that he needs an injunction against Simon & Schuster to get effective relief (considering that Mary Trump has already fully disclosed her accusations to the publisher), the propriety of Robert’s proposed interpretation of the NDA turns on whether it can support a prior restraint against the publisher. (Mary Trump's brief is here).
So far as we can see, every one of the disclosures about which Robert Trump’s lawyer has complained related to that lawyer’s far more famous client, Donald J. Trump, and says nothing about Robert, the only sibling who has invoked the NDA. Robert Trump lacks standing to enforce his brother’s rights; and my guess is that Donald Trump, although he made no bones about claiming publicly that his niece had no right to publish a book, made a deliberate choice not to expose himself to being deposed in this litigation by being a plaintiff.
The use of NDA’s – both non-disparagement and non-disclosure agreements – has spiraled out of control in recent years, threatening public access to important facts and enabling companies and wealthy individuals alike to continue bad conduct by silencing whistleblowers. Donald Trump got used to using NDA’s in his business, and he has been imposing them on people serving in his administration as well.
Legislation is needed to rein these practices in, but until such bills become law, construing such clauses narrowly is a good first step.
Many thanks to my friend and local counsel Richard Ravin of Hartmann & Winnicki for spending part of his July 4 weekend helping get this brief filed.