Stephanie Winston Wolkoff served as an adviser to the first lady from January to August 2017, during which time she entered into what is called a “Gratuitous Services Agreement,” which was approved by a government contracting officer. Under the agreement, Wolkoff agreed to serve in a “volunteer role as a trusted adviser” and “promised to maintain strict confidentiality over ‘nonpublic, privileged and/or confidential information’ that she might obtain during her service.”
That deal contained “no termination date,” according to the complaint the government filed, which states clearly that Wolkoff had “access to significant confidential information related to the first lady’s official duties as well as to more private aspects of her role in the first family.” She also had “indirect access to deliberative information, to which the first lady was privy, related to the president’s official duties on behalf of the country.”
Translation: She had access to information revealing what our government was up to. That belongs to the American people, not to Melania Trump.
Agreements like this for volunteers are not new to the U.S. government; they arise from the adoption of the Antideficiency Act more than a century ago. The documents are simply meant to establish that no money, favors or other compensation will be given or received by the parties involved — with the broad purpose being to keep the government from incurring financial obligations over and above those authorized by Congress.
In essence, GSAs are meant to serve as a shield for the government because they eliminate any risk or obligation for financial liability and provide insulation from lawsuits. But this lawsuit demonstrates that the Trump administration is perverting them to function as a sword to silence or punish potential threats.
The Trumps are well-known for trying to silence friends and foes alike through the use of nondisclosure agreements, but on past occasions the efforts were pursued through the Trump Organization or President Trump’s political campaign. In an April 2016 interview with The Washington Post, presidential candidate Donald Trump said he supported making federal employees sign NDAs. “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.”
Of course, it is no surprise that President Trump’s administration has 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 signed NDAs. Ironically, Lewandowski publicly questioned whether NDAs signed in the White House are enforceable.
Unlike the sloppiness of the initial NDAs relied upon by the Trump White House, which literally appeared to be nothing more than a Trump Organization document modified to apply to White House staff, this new version at least follows proper guidance and includes whistleblower protection provisions. But it still seeks to do what no prior administration has seemingly done, which is to rely on NDAs to silence those closest to it.
That the Justice Department has now inserted itself into this aggressive pattern is more than troubling: It is also unconstitutional when it comes to those who seek to reveal information involving governmental activities. Wolkoff was never a federal employee and volunteered her time, which may distinguish this case from the typical fact pattern, but that doesn’t mean she relinquished her First Amendment rights. In fact, she also claims that most of the factual information in her book predates her GSA NDA, which if true, only exacerbates Trump’s abuse of the Justice Department to pursue this lawsuit.
There are limited circumstances in which an individual can waive their First Amendment rights, such as through employment involving classified information (as John Bolton, Trump’s former national security adviser, is learning). But it has been well-established for decades that the government may not censor unclassified material “contractually or otherwise.”
The First Amendment means that our government has no power to restrict expression because of its message, its ideas, its subject matter or its content. In fact, the Supreme Court has rejected as “startling and dangerous” restrictions that fell outside of a few “historic and traditional categories” such as inciting imminent lawless action, obscenity, defamation, speech integral to criminal conduct, so-called “fighting words,” child pornography, and speech presenting some grave and imminent threat the government has the power to prevent. Even false information has been deemed worthy of protection under our traditional freedom of expression.
No one should dispute that, as the Justice Department asserts, the “president, the first lady, and other advisers need to be able to freely deliberate about important decisions bearing on how the executive branch is constituted and operated.” But unending confidentiality agreements involving the U.S. government and senior officials are unenforceable particularly because the information concerning the activities and beliefs of those public officers who govern us, including the first family, belong to the people.