June 25, 2016 at 9:00 AM
Corey Lewandowski isn't saying whether his old contract with Donald Trump prohibits him from disparaging the Republican presumptive presidential nominee in his new job as a CNN commentator. Asked on the air by Erin Burnett Thursday night, Trump's recently fired campaign manager wouldn't give a yes-or-no answer but claimed "if something is wrong, I'm going to tell people it's wrong."
So the question remains: Can Lewandowski really criticize Trump if the nondisclosure agreement he signed — and he did acknowledge signing one — includes the same language reportedly contained in another ex-employee's contract?
During the term of your service and at all times thereafter, you hereby promise and agree not to demean or disparage publicly the company, Mr. Trump, any Trump company, any family member, or any family member company.
According to experts in employment law, the answer to whether Lewandowski can freely bash his former boss — not that he has shown any inclination to do so — is yes ... ish.
"It's very hard to think of a scenario under which [a non-disparagement clause] is enforceable," said Alan Hyde, an attorney who has represented the National Labor Relations Board and now teaches contracts and employment law at the Rutgers University School of Law. "It's mostly there to be cautionary."
In other words, it's something Trump uses to make someone like Lewandowski think twice before saying something bad about him.
The trouble for Trump, according to Hyde, is that to win a lawsuit against Lewandowski, he would have to prove that his ex-aide's disparagement caused economic harm. Even arguing that Lewandowski cost him the election — a reach in itself, since "people criticize Trump wholesale every day," Hyde noted — would not be enough to prevail in court.
"That wouldn't work in a contract suit," Hyde said. "Contract suits have to allege economic damage. They have to allege a breach of a promise, and then you have to show the breach of that promise caused the plaintiff to suffer some economic damage — and you have to prove it with certainty. It would be impossible, plausibly, to show that any particular criticism of Trump cost him.
"I would think most judges would toss the suit."
Well, then. It sounds like Lewandowski can just let 'er rip.
But it's not quite so simple, according to J.H. Verkerke, director of the Program for Employment and Labor Law Studies at the University of Virginia Law School. Even if Lewandowski could shred Trump on the air and then beat him in court, "just the cost of defending a lawsuit would likely be a huge deterrent to testing the limits of the clause," Verkerke said.
One thing that might liberate Lewandowski would be a commitment by CNN to cover his legal fees, should Trump ever come after him. Companies that hire workers bound by non-disparagement clauses will sometimes make such promises, Verkerke said.
"Without such an agreement, however, I would expect such a clause to make the former employee extremely reluctant to say anything critical," he added. "A lawyer advising a former employee like Lewandowski who had signed such a clause would surely counsel extreme caution in public — and probably also private — comments. The only way to be absolutely safe from a lawsuit would be to confine yourself to no comment, noncommittal, or positive statements."
Thus, it appears Lewandowski probably could blast Trump on CNN and ultimately get away with it. But for a guy who has seen up close the fury Trump can bring to litigation (Gonzalo Curiel, anyone?), there is reason to think he might simply decide it's just not worth it.