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Judge Says ‘Con. Law Trumps Contracts’ in Major Win for Mary Trump’s Tell-All Book


WASHINGTON, DC - JUNE 23: U.S. President Donald Trump speaks to reporters before boarding Marine One on the South Lawn of the White House on June 23, 2020 in Washington, DC. Trump is traveling to Arizona where he will tour border-wall-construction operations in Yuma, later speaking to a conservative advocacy group in Phoenix. (Photo by Drew Angerer/Getty Images)

In a rambling 20-page decision, a New York State trial court judge issued a series of orders which ultimately allowed the author of the book Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man to discuss the tell-all publicly.

The core of the Monday ruling by Judge Hal B. Greenwald vacated previous decisions regarding temporary restraining orders and denied requests by Robert S. Trump for preliminary injunctions against Mary L. Trump and Simon and Schuster. As such, the author and publisher are free to speak and to publish as they wish.

Mary L. Trump, President Donald Trump’s niece, got the go-ahead on Monday night to discuss the contents of a her book. The president’s brother, Robert S. Trump, sued Mary Trump and Simon & Schuster in an attempt to block the book from being published. Among the causes of action were claims that an agreement signed by Mary L. Trump in 2001 as part of the dissolution of the estate of Trump patriarch Fred C. Trump required her to keep family matters private.

Here are several highlights from the judge’s order, which was peppered with colloquial zest and rhetorical questions.

(1) Donald Trump’s unique global status makes this case extremely unique.

Judge Greenwald made it abundantly clear that both time and shifting family status affected the analysis of issues in this case. The instant dispute, judged by today’s standards and with a presidential election looming, is not a mere family dispute in 2001 about confidentiality, money, or even business: it is a case concerning an uncle with presidential duties—powers bestowed by voters and influenced by public scrutiny—in 2020. Here is Greenwald’s discussion of the family’s agreement as viewed through a modern lens:

Remember, at the time the Agreement was agreed upon, the Trump family were New York based real estate developers and not much else. They were not elected officials or TV personalities. The issues that were the subject of the Agreement were intra family issues, not of worldwide concern, or even national interest. Maybe, taking from Justice Sheinkman’s [sic] [appellate court] Decision, what if the Agreement was temporally set for a period of 5 years, even 10; and what if the Agreement had a geographical prohibition of disseminating anything about the Trump family limited to the five boroughs, even Westchester, NYS? The Tri-State area? Would that make the Agreement more reasonable, more readily defensible? Valid even? Possibly. Instead, the Agreement has no time limits, and no geographical prohibition. Does that make the Agreement easier to defend at this time and place, more practical to support, likely for it to succeed on the merits? I think not.

A discussion immediately followed about case law concerning restrictive covenants and why, legally, they are limited. Then there was this:

In the matter before this Court, Plaintiff has failed to meet his burden of demonstrating, imminent, irreparable harm, to him (emphasis added). His allegations are unsupported and conclusory. They are without any specifics as to how he, ROBERT S. TRUMP will suffer irreparable harm. Remember the Plaintiff is ROBERT S. TRUMP and no one else.  There has been nothing offered that demonstrates that the actions by MARY L. TRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP. Thus, the second requirement for the court to issue a preliminary injunction is not satisfied.

(2) Robert S. Trump is a poor plaintiff for this sort of action.

The judge further expounded that the president’s brother is a very strange person to bring an action to shut down a book in the months leading up to a presidential election:

What about the public right to know? The Trumps were local in 2001. The leader of the Trump family in 2020 is global. Yet, this action was brought by ROBERT L. [sic] TRUMP and no one else. It is he who had to substantiate a claim for irreparable harm, no other Trump family member is specified. Plaintiff has not justified his claim for irreparable harm.

[ . . .]

At this point, plaintiff asserts that the release of confidential information, no matter what it is amounts to irreparable harm. He is unaware of the information contained in the Book, in which case the court finds he does not sustain his claim; or there is already so much confidential information “out there” pertaining to the plaintiff, that it is moot for the court to even consider an injunction. In the instant matter, the movant has not shown sufficient information that he will be likely to have success on the merits of his case. Moreover, even if the court were to relax the standard applicable to likelihood of success, it still would fail. Plaintiff’s arguments in support of a finding in his favor on his Verified Complaint are unavailing. Accordingly, the Court rules that ROBERT TRUMP has not demonstrated by “clear and convincing’ evidence that he has a likelihood of success on the merits of his case.

(3) The judge rubbished the Trump family’s broad reading of Mary L. Trump’s agreement to settle the Fred C. Trump estate.

The judge reasoned that the purported confidentiality clause agreed to by Mary L. Trump wasn’t solid enough legally to shut down a book about a president in the family all these years later:

Reviewing the Agreement and the words contained therein, considering what is known of the parties at that time and the circumstances of, what appeared to be somewhat nasty litigation, it is possible to read the Agreement and see a contract with a confidentiality clause. Yet, the clause is so overly broad, as to be ineffective.

[ . . . ]

Notwithstanding that the Book has been published and distributed in great quantities, to enjoin MARY L. TRUMP at this juncture would be incorrect and serve no purpose. It would be moot.

(4) Mary L. Trump is not a ‘principal,’ and Simon & Schuster is not her ‘agent’:

The judge said that “[t]he mere fact that S&S entered into a publishing agreement to publish MARY L. TRUMP’s memoir – does not establish agent-principal relationship.” Therefore, even if Mary L. Trump’s agreement with the family back 2001 does apply, it applies to Mary L. Trump, not to Simon & Schuster:

It is true that persons not parties to the action may be bound by an injunction, if there is proof that the non-party is a servant or agent of the defendant or acts in collusion or combination with them. However, in the absence of proof that a non-party is an agent, the non-party cannot be enjoined or punished for defendant’s alleged wrong doings (citation omitted).  The fact that MARY L. TRUMP may have exceeded her rights by entering into the Publishing Agreement with S&S, does not provide proof of collusion or that S&S is MARY L. TRUMP’s agent or acting in concert with her.

[ . . . ]

Plaintiff fails to provide proof sufficient to show that that there is an agent-principal relationship between S&S and MARY L. TRUMP, or that S&S was acting in concert with MARY L. TRUMP to breach the Agreement.

[ . . . ]

The Court further finds that the balancing of the equities, where there is no privity of contract and no likelihood of success, plus there has been no evidence of irreparable harm, and in light of the number of books already published and distributed and information already discussed by media and members of the Trump family, tilts in favor of S&S.

(5) The judge raised a barnyard quote from John Bolton’s recent case.

Recall that Trump’s former National Security Adviser was just recently mired in litigation surrounding the publication of his own book:

There is no doubt that the Book is out in the public eye in significant quantities and has reached millions of people by the tremendous attention it has gained by the media. Another “balancing” test for the Court is between plaintiff and S&S. Comparing the potential enormous cost and logistical nightmare of stopping the publication, recalling and removing hundreds of thousands of books from all types of booksellers, brick and mortar and virtual, libraries and private citizens, is an insurmountable task at this time. To quote United States v. Bolton, 2020 WL 3401940 (United States District Court, District of Columbia) (Lambeth, J.) “By the looks of it the horse is not just out of the barn, it is out of the country.”

(6) Wordplay: Constitutional law trumps contracts.

The judge ended with this line after approximately a dozen scattered references to the First Amendment rights, almost all of which were cursory or in passing:

Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.

In other words, the First Amendment is more powerful than a family deal?

READ the judge’s order below:

Robert S. Trump v. Mary L. Trump – ORDER – July 13, 2020 by Law&Crime on Scribd

[Image by Drew Angerer/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.