It’s a sound and unsurprising legal strategy for Trump, who would like to treat the NDA as an agreement between two private parties — the campaign organization and Manigault Newman — instead of one that puts the federal government on either side of the contract.
The Constitution restricts the government from abridging people’s right to free speech. It does not, in most situations, curb private actors from creating private contracts. So, as long as the White House or Trump, in his official capacity as the president, were not contracting parties, Trump may avoid an onslaught of legal obstacles.
But many legal experts, such as University of Florida professor Mark Fenster, agree that the agreement should be treated as if it were made between Manigault Newman and the government.
There came a point where Manigault Newman transitioned from working with the Trump campaign to working for the White House, where she was paid by the federal government, according to Fenster.
“She was no longer working for a private entity or person. It’s not the Trump Organization or NBC or the campaign that’s trying to enforce the NDA. It’s the U.S. government,” he said. “Trump views it as the same thing, but she wasn’t working for him, she was working for the White House.”
Legally speaking, that makes all the difference.
A non-private contract would also be troubling from a First Amendment perspective, according to Heidi Kitrosser, a professor at the University of Minnesota Law School, who called it “clearly unconstitutional.”
A bedrock principle of the First Amendment is freedom from prior restraint, prohibiting governmental bans on expression as “essential to a free society.” On rare occasion, an exception has been invoked for matters in time of war or involving national security.
The NDA would constitute a restriction on matters of the utmost public importance, according to Kitrosser. “It would be a blanket prior restraint, one that goes well beyond a narrowly tailored way of keeping, say, sensitive national-security information out of the public eye. Such an agreement — if considered one between the government and a private person — would go well beyond anything that I could imagine any court approving.”
There is also an existing body of law on the state-action doctrine — when something normally done by a private actor is effectively the work of the state.
It would be an unusual, though not implausible, argument because, as Kitrosser said, “This is an unusual president.” He is trying to not only silence Manigault Newman but also prevent her from speaking about things he did as the president of the United States of America, she said.
If the Trump campaign was deemed a state actor, it would be viewed in the same light as the White House. “Absent some overriding government interest, the First Amendment would foreclose it from enforcing an NDA that barred a private citizen from addressing an issue of public concern,” said First Amendment Knight Institute Fellow Ramya Krishnan.
Courts generally enforce private agreements, but under a well-established principle of contract law, one can also be voided if it goes against public policy — analogous to a concept known in the legal community as “piercing the veil,” Kitrosser offered as a point of comparison. Traditionally, the phrase is used when an individual is held personally liable for corporate action.
The public policy notion has been argued where democratic processes or institutions have been implicated. This positions the First Amendment as a potential threatening force.
“A court certainly might be influenced by the importance of the information at issue and the fact that the contract effectively applies to speech regarding official White House business,” she said.
Whether a court will “pierce the veil” of Trump’s private-actor posture and say that Manigault Newman agreed with him in his official capacity remains to be seen, she said. One issue, though, is that deference is usually given to arbitrators and secrecy of the arbitration process, which is not held for the public in open court.
“It was designed for business to settle disputes. Using arbitration agreements in this manner will continue to associate arbitration with scandal and inappropriate confidentiality,” said Steven Skulnik, New York City Bar Association’s Arbitration Committee Chairman.