Trump Campaign NDAs Might Be Invalid

Ken AshfordGeneral corruption, Trump & AdministrationLeave a Comment

Unless they deal with keeping classified information secure, government NDAs that extend beyond the scope one one’s employment are probably invalid as a matter of law.

But what about the NDAs signed with the Trump campaign (the one in 2016 or the one for 2020)?  That’s a tougher question.

Or maybe not.

A Manhattan judge issued a ruling on Thursday that thwarted the Trumpcampaign’s attempts to keep a lawsuit out of open court, with potential implications for the looming battle over fired Trump aide Omarosa Manigault Newman’s slow-motion revelations of her experiences in the Trump campaign and White House.

The decision came in a lawsuit filed by Jessica Denson, a former campaign staffer who filed a complaint last November that alleged she was subjected to “harassment and sexual discrimination” while she worked on Trump’s White House bid in 2016. Lawyers for the Trump campaign tried to force the case into private arbitration based on an agreement signed by staffers that included nondisclosure and nondisparagement provisions. In her decision, Judge Arlene Bluth of New York State Supreme Court disclosed flaws in the wording of the agreement that she said limited its scope.

The ruling exposes potential weaknesses in the non-disparagement and non-disclosure agreements that staff at Trump’s White House, his campaign, and the Trump Organization have been made to sign. These documents have made headlines this past week as Manigault Newman, a former White House staffer, claimed the White House was trying to use them to “silence” her after she went public with a tell-all book and a series of embarrassing tapes from her time in the West Wing and from working on Trump’s campaign.

I couldn’t find a copy of the actual NDA, but we get an insight into the problem with it.

Bluth’s ruling noted flaws in the agreement Denson was required to sign. The judge suggested the document was worded badly, and implied it could have done what the campaign’s attorneys wanted if it had been written better.

“As an initial matter, the Court observes that the arbitration clause confines arbitration to ‘any dispute arising under or relating to this agreement,’” Bluth wrote, adding with emphasis, “It does not require arbitration for any ‘dispute between the parties’ or even ‘any dispute arising out of plaintiff’s employment.’”

Bluth even took aim at the title of the document prepared by the Trump campaign. In the motion to compel arbitration, the campaign’s attorneys described the document signed by Denson as an “employment agreement.” The judge noted this wasn’t actually written down.
“The agreement is simply titled ‘Agreement’ — not ‘Employment Agreement,’” Bluth wrote.

The judge also found that the agreement only covers “a specific list of five prohibited acts” rather than all aspects of Denson’s employment. The document provided for  “no disclosure of confidential information, no disparagement, no competitive services, no competitive solicitation, and no competitive intellectual property claims.”

“There is simply no way to construe this arbitration clause in this agreement to prevent … pursuing harassment claims in court. The arbitration clause could have been written to require any disputes arising out of … employment to go to arbitration. … But it did not,” wrote Bluth.

This could have a big impact not only on the Omarosa situation, but on any other campaign folks who want to sue Trump.