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Opinion The stupidity of trying to enforce Trump’s NDAs

Promoter Don King, Omarosa Manigault and pastor Darrell Scott listen to remarks by Republican presidential nominee Donald Trump at the New Spirit Revival Center in Cleveland Heights, Ohio, in 2016. (Jonathan Ernst/Reuters)

The Post reports:

President Trump’s campaign has filed an arbitration action against Omarosa Manigault Newman, alleging that the former White House aide, who just published a tell-all book, has broken a 2016 confidentiality agreement, a campaign official said Tuesday.
The action, which the campaign said was filed in New York, comes amid a publicity tour by Manigault Newman to promote her book, “Unhinged,” which portrays Trump as bigoted and racist and questions his mental capacity.

No matter how many times press secretary Sarah Huckabee Sanders, who regularly misrepresents facts and the law, says a nondisclosure agreement is common, to our knowledge such a restriction is unprecedented in the White House outside a classified security setting and, at any rate, is almost surely unenforceable with regard to her time in the White House. Mark S. Zaid, a lawyer who represents many federal employees in the national security realm, tells me, “As a government employee she is entitled to First Amendment protection, and no NDA can overcome it other than for classified information.” That might still allow Trump to shush her up with regard to matters before her government service, although the terms of the NDA are so broad they might be unenforceable on public policy grounds (e.g. the free exchange of information about presidential candidates is part and parcel of our democracy).

Harry Litman, a former federal prosecutor, predicts that “the NDA will be struck down as overbroad.” He explains, “There are legitimate reasons to preserve the confidentiality of some White House communications — e.g., about national security — but this is designed to sweep in almost all communications for all time.” From Trump’s perspective, “the problem is that the White House staff has First Amendment rights, and even more importantly that the public has a right to know about much of the day-to-day workings of the executive branch.” He adds, “Neither Trump nor any other president can just shield everything from public scrutiny.”

As to Manigault Newman’s time in the White House, however, she and the other staff, past and present, work(ed) for the taxpayers, not him. They are not his personal employees from whom he can extract a confidentiality pledge as consideration for hiring. White House staff are paid pursuant to federal law, and no provision allows for the government to extract such a promise of silence from a government employee. If Trump is trying to personally enforce the arbitration clause with regard to White House events, he’ll fail. His staffers in the administration don’t work for him, and he has given them nothing of value in exchange. (The taxpayers employed her.)

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“It’s idiotic if its purpose is to prevail in the arbitration,” says constitutional scholar Larry Tribe. “It’s not necessarily idiotic if its only purpose is to continue deflecting attention from vastly more serious issues — like what Trump and Putin said to one another during that two-hour meeting in Helsinki, or which version of [Rudolph W.] Giuliani’s defense of Trump’s conversation with [former FBI director James] Comey about going easy on [Michael] Flynn the president wants us to accept.”

Back in March, Ian Bassin, who heads the nonpartisan Protect Democracy group and previously served in the Obama administration, wrote for The Post:

It’s not just a matter of law (though government does restrict disclosure of some confidential or classified information, these NDAs go far beyond those rules); it’s about principle, and what these NDAs signify about the president’s view of government work. At root, it has become clear that Trump doesn’t view public office as a public trust, but rather as a personal fiefdom, to be controlled by whomever is declared the winner of an election.

Bassin warned that this is part and parcel of Trump’s view of government as his own fiefdom. An NDA that purports to cover Trump’s time in the White House, “aside from imposing an outrageous lifetime blanket omerta on public servants, purports to be enforceable (it’s not) by Trump personally as a private citizen after leaving office.” Bassin wrote, “I was asked on occasion when I served in the White House Counsel’s Office if staff should be required to sign NDAs. My response always contained some version of this: We work for the public. If Trump can’t see that, Congress and his lawyers should remind him.” Unfortunately his lawyers are either incompetent or too afraid to tell their client “no.”

As for his ability to reveal events during the campaign, Trump is not only trampling on the notion of free-flowing, democratic campaigns but is also implicitly saying that what Manigault Newman is claiming might be true. Otherwise, he could presumably due for defamation.

The effort to enforce an unenforceable agreement is one more Trumpian attack on the First Amendment and the concept of accountability. Every public employee outside the realm of national security is free to discuss his employment. In some cases (e.g., as a whistleblower, witness) the employee is morally or legally obligated to speak up. Trump cares nothing about the First Amendment. To the contrary, he tries to discredit any and all independent voices and sources of information. If he presses this case he may find out that in a democracy in which free speech is protected, he will not be able to bully ex-staffers into silence, at least with regard to their time in government.

In any event, Trump now risks having a ruling explicitly invalidating his precious NDAs in whole or in part. You’d think the prospect of getting an adverse ruling, a green light for ex-employees to blab, would be enough to dissuade Trump. Then again, he repeatedly shows little understanding of the courts, our legal system or the Constitution.