Fire and Fury author Michael Wolff’s publisher today called any attempt to interfere with publication of the incendiary tell-all “flagrantly unconstitutional.” Backed by his lawyer’s unqualified rebuff of the White House demand that Henry Holt and Company terminate publication of the book, which has been flying out of bookstores and across the Internet since late last week, Macmillan Publishers CEO John Sargent told employees, “We will not allow any president to achieve by intimidation what our Constitution precludes.”
Holt is a Macmillan imprint.
Sargent’s memo was followed by a letter from Macmillian lawyer Elizabeth A. McNamara, of Davis Wright Tremaine LLP, to lawyer Charles J. Harder, the Harder Mirell & Abrams LLP attorney who wrote the cease-and-desist demand on behalf of the White House.
“My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted,” McNamara wrote. And she was just getting started. After pointing out that his letter “stops short of identifying a single statement in the book that is factually false or defamatory,” McNamara says, instead, “the letter appears to be designed to silence legitimate criticism. This is the antithesis of an actionable libel claim.”
Harder’s further assertion that Wolff interfered with Steve Bannon’s contractual obligation to the President, McNamara said, was a “perversion of contract law and a gross violation of the First Amendment. No court would support such an attempt to silence public servants and the press.”
And in the letter’s most brazen retort to Harder, McNamara said Holt and Wolff “will comply” with his demand that all relevant documents be maintained and, “we must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regarding himself, his family members, their businesses, the Trump campaign and his administration…Should you pursue litigation against Henry Holt or Mr. Wolff, we are quite confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign and his administration will prove particularly relevant to our defense.”
Earlier in the day, Sargent addressed a memo to the Macmillan troops.
Last Thursday, shortly after 7:00 a.m., we received a demand from the President of the United States to “immediately cease and desist from any further publication, release or dissemination” of Michael Wolff’s Fire and Fury. On Thursday afternoon we responded with a short statement saying that we would publish the book, and we moved the pub date forward to the next day. Later today we will send our legal response to President Trump.
Our response is firm, as it has to be. I am writing you today to explain why this is a matter of great importance. It is about much more than Fire and Fury.
The president is free to call news “fake” and to blast the media. That goes against convention, but it is not unconstitutional. But a demand to cease and desist publication—a clear effort by the President of the United States to intimidate a publisher into halting publication of an important book on the workings of the government—is an attempt to achieve what is called prior restraint. That is something that no American court would order as it is flagrantly unconstitutional.
After reviewing the history of prior restraint (entertainingly summarized in The Post), Sargent concluded,
There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent. We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all authors and all their books, now and in the future. And as citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution.
Deadline attempted to reach Harder at his Los Angeles office for comment but did not immediately get a response.