Non-disclosure agreements for White House staff? Not so fast, Donald
It turns out that adult film actress Stormy Daniels isn’t the only one who’s been subjected to a legally questionable Trump-related non-disclosure agreement.
As of Sunday, we know President Donald Trump has bullied White House staff into signing expansive NDAs that bar them from speaking about the administration, and Trump, indefinitely. Among other issues, this practice runs afoul of the First Amendment. Our government isn’t allowed to suppress speech in the same way Trump could in the private sector.
In the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign nondisclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation. Some balked at first but, pressed by then-Chief of Staff Reince Priebus and the White House Counsel’s Office, ultimately complied, concluding that the agreements would likely not be enforceable in any event.
The notion was hardly new to Trump, as he proposed subjecting government employees to NDAs back in April 2016. He was already forcing campaign staff to sign NDAs, binding them not for a few months or years, but indefinitely. (The Texas Tribune got hold of one.) But back then he also acknowledged he might not be able to extend that practice to federal employees: “there could be some kind of a law that you can’t do this.” No kidding.
Ruth Marcus, the Washington Post deputy editorial page editor who broke the news, sums up just how nutty this NDA thing is:
Every president inveighs against leakers and bemoans the kiss-and-tell books; no president, to my knowledge, has attempted to impose such a pledge. And while White House staffers have various confidentiality obligations — maintaining the secrecy of classified information or attorney-client privilege, for instance — the notion of imposing a side agreement, supposedly enforceable even after the president leaves office, is not only oppressive but constitutionally repugnant.
The draft version of this NDA, per Marcus:
would expose violators to penalties of $10 million, payable to the federal government, for each and any unauthorized revelation of “confidential” information, defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including “communications . . . with members of the press” and “with employees of federal, state, and local governments.”
How far would the ban on speech go?