This weekend we learned that in the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign nondisclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation. Some balked at first but, pressed by then-Chief of Staff Reince Priebus and the White House Counsel’s Office, ultimately complied, concluding that the agreements would likely not be enforceable in any event.
I haven’t been able to lay hands on the final agreement, but I do have a copy of a draft, and it is a doozy. It would expose violators to penalties of $10 million, payable to the federal government, for each and any unauthorized revelation of “confidential” information, defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including “communications . . . with members of the press” and “with employees of federal, state, and local governments.” The $10 million figure, I suspect, was watered down in the final version, because the people to whom I have spoken do not remember that jaw-dropping sum.
It would prohibit revelation of this confidential information in any form — including, get this, “the publication of works of fiction that contain any mention of the operations of the White House, federal agencies, foreign governments, or other entities interacting with the United States Government that is based on confidential information.”
As outlined in the document, this restriction would cover Trump aides not only during their White House service but also “at all times thereafter.”
The document: “I understand that the United States Government or, upon completion of the term(s) of Mr. Donald J. Trump, an authorized representative of Mr. Trump, may seek any remedy available to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.”
This is so ridiculously excessive, so laughably unconstitutional, that I doubted, when it first came my way, that anything like it was ever implemented — only to do some reporting and learn otherwise.
Public employees can’t be gagged by private agreements. These so-called NDAs are unconstitutional and unenforceable.
As the article suggests, everyone knew they were unenforceable — that’s why they signed them (you have to pick your battles, I guess). But this means that the dumbest guy in the room was the President of the United States, who either believed the NDAs were enforceable OR believed that others would believe it. Either way, he was and is wrong.
And even ASKING employees to sign these things is a problem for the administration:
White House lawyers who knowingly participated in a scheme to illegally coerce unrepresented non lawyer employees & deprive them of First Amendment and other rights could be subject to bar discipline for violating ethics rules —and maybe even lose their licenses https://t.co/UOWd3y7yQS
— Norm Eisen (@NormEisen) March 19, 2018
Another peril of taking a guy who has never done public service of any kind, and making him president.