Trump Has Upper Hand in Legal Fight With Bannon

The increasingly bizarre dispute between President Donald Trump and his former campaign aide and White House staffer Steve Bannon continues to boggle the mind. Yet for me as a contracts professor, one corner of the contretemps raises a simple and clear question. I refer to the letter from Trump’s lawyer, Charles Harder, insisting that Bannon is in violation of a non-disparagement clause in the contract that he signed when he joined the campaign. If the facts are as claimed, I think the clause is enforceable.

Earlier this week, my Bloomberg View colleague Noah Feldman wrote that a court would probably find that First Amendment considerations rendered the clause void, because enforcement in this instance would suppress robust public-policy debate. There is force to this argument, but the precedents point the other way. As regular readers know, I am a great believer in strong First Amendment protections, but in this case I don’t think the Constitution is a bar.