Last month, my client Cliff Sims published the latest account from a former Trump White House insider. Although the truthful descriptions of some senior White House officials could be characterized as unflattering, the book, “Team of Vipers,” is quite sympathetic to President Trump, for whom Sims worked in the White House and during the 2016 campaign. It describes a somewhat chaotic atmosphere where the president unfortunately receives and listens to bad advice from self-interested aides.
That has led directly to a battle over the First Amendment rights of former federal employees such as Sims.
As is common, the conflict started with a tweet. On Jan. 29, Trump called Sims a “low level staffer that I hardly knew” who “wrote yet another boring book based on made up stories and fiction” and was “nothing more than a gofer.” The president, whose tweets are considered official government statements by the White House, highlighted that Sims “signed a nondisclosure agreement.” Not 20 minutes later, Michael Glassner, the Trump reelection campaign’s chief operating officer, tweeted: “The Trump campaign is preparing to file suit against Cliff Sims for violating our NDA.”
On Jan. 31, the Trump campaign filed an arbitration claim against Sims for allegedly violating his NDA. The claims against Sims rely solely on facts related to his service as a federal employee. In fact, the arbitration demands the return of documents that, if they even exist, would be the property of the U.S. government, not the campaign.
That is why earlier this week Sims pushed back on Trump, a man whose policies he still supports, by filing a federal lawsuit in Washington to challenge this unconstitutional attempt to intimidate and silence him. The arbitration claim is nothing more than a subterfuge effort by the U.S. government to use a private entity — the Trump campaign — to do its bidding to silence Sims. This is the intense powers of the presidency coming down on one person to attempt to do what the government knows cannot be done in its own name.
Trump’s actions could have significant ramifications for future federal employees. If the president prevails, any winning candidate could forever silence — in advance — those who worked on their campaigns. Our democratic way of life should not tolerate political censorship.
Of course, no one should be surprised by Trump’s harsh position. In an April 2016 interview with The Washington Post, the future president said he supported making federal employees sign nondisclosure agreements.
“I think they should,” Trump said. “... When people are chosen by a man to go into government at high levels, and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that.”
Indeed, this is not the first time Trump has used strong-arm bullying tactics to silence those he or his close advisers consider opponents. A similar arbitration proceeding was initiated by the Trump campaign against former White House aide Omarosa Manigault-Newman for publication of her 2018 book “Unhinged,” which details her own time as a federal employee. It was reported that lawyers for Trump also threatened Stephen K. Bannon, a former White House chief strategist, on the basis that he had violated an NDA for comments he made about his time in government service.
Not coincidentally, Trump and his campaign have ignored those books viewed as complimentary to Trump, such as the ones written by former press secretary Sean Spicer or by his former advisers Corey Lewandowski and David Bossie, even though all of them presumably also signed NDAs. Ironically, Lewandowski told reporters last year that NDAs signed in the White House probably are unenforceable.
The pattern is obvious.
But the First Amendment’s protections of speech can’t allow the government to bar most employees from talking about their work. The use of NDAs for federal employees is routine in the national security arena, but they can prohibit the disclosure of classified information only. For decades, courts have made it clear that the government may not censor unclassified material, “contractually or otherwise.” Legal challenges during the 1970s and 1980s against the CIA settled the question that the government has no legitimate interest under the First Amendment in censoring unclassified information.
When Sims worked in the White House, he served not just Trump but also the American people. He was a public servant, and all Americans, whether Democrats or Republicans, are entitled to know the good and the bad of how our government functions. That is what the First Amendment has protected for more than two centuries. And not even the president can change that.