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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?
It would prohibit revelation of this confidential information in any form — including, get this, “the publication of works of fiction that contain any mention of the operations of the White House, federal agencies, foreign governments, or other entities interacting with the United States Government that is based on confidential information.”
It’s almost certain that the NDAs are unenforceable.
The NDAs, as described by the Post, contain an essential constitutional flaw. White House employees don’t work for President Trump. They work for the United States, so the U.S. is the supposed beneficiary of the non-disclosure agreements.
The U.S., and not President Trump, would also be responsible for enforcing the agreements, said law professors Heidi Kitrosser of the University of Minnesota and Mark Fenster of the University of Florida. But the First Amendment protects people against government restrictions on free speech. “These NDAs strike me as clearly unconstitutional under the First Amendment,” said Kitrosser.
“A public employee,” added Fenster, “can’t be forced to sign away the right to speak.”
After Trump’s out of office, the proper party to enforce the agreement remains the U.S. government. It’s hard to imagine a subsequent administration pursuing that course.
The circumstances under which government employees (and ex-employees) can be penalized for speech are limited.
[I]f you’re a current government employee or an ex-spy or FBI agent or otherwise handled classified material, you can get into trouble for talking. You may lose your job or your profits. But as the Washington Post described the Trump administration’s non-disclosure agreement, it purports to extend beyond current employees and to impose severe penalties for violations – and that’s where it runs into constitutional and administrative problems.
If the government were to try and enforce one of these lunatic NDAs, an attorney who specializes in whistle-blowing law volunteered to represent employees, and ex-employees, pro bono. (The legality of such arrangements for current staff could be debatable, but let’s shelve that.)
The ACLU, too, has indicated its hostility to Trump’s empty NDAs. “Public employees can’t be gagged by private agreements,” said Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project. “These so-called NDAs are unconstitutional and unenforceable.”
Almost as incredible as the notion of federal employees signing away their First Amendment rights: the White House Counsel’s Office was part of the push to get staffers to sign these overtly over-expansive, violative agreements. Did they think that the NDAs could be enforceable? Or, like so many other officials, were WHCO staffers just trying to placate Trump?