News from the White House this week has been particularly interesting from a legal perspective, and will undoubtedly form the fact pattern of a few law school exams this spring. The President of the United States sent a cease and desist letter to Michael Wolff, the author of “Fire & Fury”; to the book’s publisher, Henry Holt & Co.; and to Steve Bannon. Where to begin?

The letter threatens defamation claims against Wolff and his publishers. To prevail on such a claim, the President must prove not only that there are false and defamatory statements of fact in the book (not opinions), but also that Wolff and his publishers acted with “actual malice.” The actual malice standard applies because the President is a public figure. It requires evidence that Wolff and/or the publishers knew certain statements were false before they were published or that they acted in reckless disregard of the truth or falsity of the statements.

Imagine the depositions. The President needs to establish that particular statements in the book are false—by explaining what really happened, under oath—and then he must establish damages attributable to the making of those particular statements. The damages aspect of this defamation claim is extremely difficult in light of the sheer number of statements made about the President and his family each week. How do you separate one from another?

To prevail, the President would also need to prove what Wolff and his publisher knew and when they knew it. Not to mention the fact that any deposition of a sitting President opens him or her up to claims of making false statements under oath. Why the President’s attorney would invite this circus is puzzling.

As we have discussed in previous posts, at least in the intellectual property context, sometimes when people send a cease and desist order, the other side will beat them to the courthouse—filing a declaratory judgment claim in a convenient jurisdiction. It would be interesting to see something similar happen here and watch the White House try to back away from the accusations or try to invoke some sort of immunity.

Another wrinkle here is that Steve Bannon apparently entered into a non-disparagement agreement during the Trump campaign that prohibited him from “disparaging Mr. Trump, or any of his family members, or any of their businesses, or the campaign.” The scope of that agreement post-election is unclear. Regardless, the agreement wouldn’t affect Wolff’s decisions to quote or paraphrase Bannon or the publishing company’s decision to publish the work, as neither Wolff nor Henry Holt & Co. are parties to the non-disparagement agreement. There are also issues surrounding the First Amendment and prior restraint of speech (if a court were to halt publication).

Additionally, the publishing company has a contract with Wolff that the President would arguably be tortuously interfering with if he brought a court action to halt publication or dissemination of “Fire & Fury.” Can a publishing company sue a sitting President for tortious interference in state court? Interesting question, and one that will likely never be addressed by a court of law.

Most likely the cease and desist letter will not be followed up on. This is a standard business tactic that President Trump learned during his years as a real estate mogul that did not transfer well into the Oval Office.

The book was released today without court interference and it will sell all the more copies because of the President’s efforts. Today is day one and Amazon is already reporting it as a #1 Best Seller, it has 151 reviews at the time of this post, and is garnering a five star rating. You can’t buy this kind of publicity.