The Trump Tapes: Can they Legally be Released?

As we thankfully enter the home stretch of what many consider the ugliest presidential race in U.S. history, new allegations of wrongdoing from both major party candidates seem to be an almost daily occurrence. The massive document dump by Wikileaks revealing internal emails within the Clinton campaign would in any other election year be the talk of the country. However, the now infamous 2005 tape of Donald Trump bragging about what can only be described as sexual assault has launched the national political discourse into a complete frenzy.

After the release of this tape there have been rumblings of more recordings of Mr. Trump making lewd comments about women and minorities. Most of the purported tapes that have yet to be unearthed are from Mr. Trump’s days as a reality TV star on NBC’s The Apprentice. Bill Pruitt, a former producer on the show recently tweeted, “As a producer on seasons 1 & 2 of #theapprentice I assure you: when it comes to the #trumptapes there are far worse. #justthebeginning.”
Mark Burnett, the producer behind the show was thrust into the national spotlight after he issued a statement saying that he could not and would not release any of these tapes. Reports by CNN and Buzzfeed allege that any NBC employee found to have released the tapes would face penalties up to $5 million in damages. This has sparked a legal debate about whether such recordings can be released.

David Brock, prominent Clinton ally has stated that he would happily pay all of the legal fees to any person who leaks more of these tapes. Critics to that approach say that encouraging employees to violate their contracts and non-disclosure agreements in and of itself is illegal. The Hollywood Reporter in a recent article discussed the potential ramifications of releasing such tapes saying, “There are laws against tortious interference with contractual relations, and the penalties can include economic damages and punitive damages.” Mr. Trump as he has boasted is no stranger to litigation and the release of any subsequent videos, tapes, etc. would likely lead to some sort of lawsuit. It is important to note that The Washington Post who obtained the 2005 tape has cited its First Amendment privilege not only to release the tape, but to keep its source confidential.

The entertainment company Metro-Goldwyn-Mayer (“MGM”) which recently bought the rights to The Apprentice issued a statement stating, “MGM has agreements with artists across a wide spectrum of creative properties, including The Apprentice…These agreements typically contain provisions related to confidentiality and artist’s rights. MGM has every intention of complying with its agreements with artists and honoring their rights, including with rest to The Apprentice.” A source familiar with Mr. Trump’s contract with respect to The Apprentice told the New York Times that MGM would have to obtain permission from Mr. Trump before they could release the tapes, something that likely will never happen. The provision in his contract is common amongst celebrities who wish to maintain control over the use of their name and likeness. Some legal analysts have also pointed out that Mr. Trump as a national television celebrity has no reasonable expectation of privacy when wearing a ‘hot mic’ on the set of The Apprentice.

With both Mr. Burnett and MGM digging their heels in, many around the country have demanded that these tapes be released saying that it is in the public interest to have them released. Leading this charge is famed civil rights attorney Gloria Allred. She recently released a letter calling on the release of the tapes saying “You [Burnett & MGM] have publicly stated that there are legal restrictions and prohibitions on releasing the tapes…I would propose that the evidence supporting your assertion that there is a legal basis for your refusal to release footage of Mr. Trump on The Apprentice be disclosed to a panel of three retired Los Angeles Superior Court judges who would review your claimed legal restrictions and determine if the footage of Mr.Trump can legally be released.”

This debate will no doubt continue to rage on until the conclusion of the election on November 8. As of a few days ago there have been additional Trump tapes released, though none from The Apprentice and none as damning as the bombshell that was published by The Washington Post.

Additional readings:

Gloria Allred Calls on Mark Burnett to Release Trump ‘Apprentice’ Footage

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