Trump: Wacky Omarosa is under an NDA!

Just pausing at the start to note that this sequence of tweets (a) is surreal even by Trump standards, as Trump himself acknowledges, and yet (b) was completely foreseeable in 2015-16.

We asked for exactly this. We got it.

Bad employee, widely disliked, turns out to have been surreptitiously recording people, but she said nice things about Trump so naturally she stayed on. Here’s the newsy tweet, though:

WaPo columnist Ruth Marcus claimed in March that Trump staffers had been made to sign NDAs. The NYT confirmed it a few days later. Now here’s Trump casually confirming it himself. It’s in character too, as I said when writing about Marcus’s piece:

Trump does like NDAs. There’s the Stormy matter, of course (and maybe the Jessica Drake matter too), but he also had nondisclosure agreements with his campaign staff. Remember that $10 million lawsuit against Sam Nunberg in the middle of the 2016 campaign? That was to enforce an NDA that Nunberg allegedly breached. Trump has also spoken on the record in interviews about why he thinks NDAs for White House staff would be a good idea. Quote: “[W]hen 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.” Marcus has good reason to suspect that the document she has is legit.

Marcus thought the NDAs must be unconstitutional but I think the question is murkier. If the contract is between Trump in his individual capacity and the staffer, where’s the state action that would bring the First Amendment into it? If the answer is that the contract addresses their employment by the government, what about the fact that the government forbids employees from publicly discussing certain things (i.e. classified information) as a matter of law? If Congress has the power to silence government workers about some matters, surely the president has the power to silence executive branch employees about other matters via their own written consent.

And yet:

At least one Trump aide sounds pretty confident that he’d have nothing to worry about by signing. Omarosa must be confident too. How come? Back to that NYT piece from March:

To calm Mr. Trump, Donald F. McGahn II, the White House counsel, drew up a broad document barring White House officials from publicly disclosing what they heard and saw at work. But he privately told senior aides that it was mainly meant to placate an agitated president, who was convinced that the people around him had to be pressured into keeping his secrets. Mr. McGahn made it clear the agreement could not ultimately be enforced, according to several people who signed.

The nondisclosure agreement, presented by Mr. Priebus to the senior staff last April, did not specify any penalties — financial or otherwise — for breaking it

A senior White House official said when aides sought to clarify whether they would be able to speak in specific instances — to fulfill a request from a congressional oversight committee, for example, or to field a question from a lawmaker — Mr. McGahn would reassure them they had wide latitude. Current and former officials said the agreement contained sweeping caveats stating that it was consistent with whistle-blower protections and other oversight and disclosure laws that apply to federal workers.

Trump was nervous about his aides writing tell-alls, for good reason. It happens in (nearly) every administration and was a lock to happen in his, given the public appetite for Trump dirt and the fact that he clashes so often with the people around him. So McGahn wrote something up to appease him — knowing that it almost certainly wouldn’t hold up in court. The fact that it (allegedly) doesn’t even specify penalties shows that it was toothless by design. And why was McGahn so sure that it’d be unenforceable? It wasn’t because of the First Amendment, I’d guess, but because he expects that a judge would deem a contract like this to be against public policy. If the president can condition public employment on vows of total silence, every middle manager at every level of government will want his deputies to do the same. That means less transparency and accountability by public servants than we have now. Just as a court won’t enforce a contract by one person to sell a baby to another, whether there’s a law banning it or not, they won’t enforce this. (Probably.)

But even if Trump found a court that would, he has another problem:

When asked by MSNBC’s Ali Velshi if she had more recordings, Manigault Newman replied, “Absolutely.”

“Are you going to release them?” Velshi followed up.

“I don’t know,” she replied. “I’m going to watch to see. They’ve been threatening legal action, they’re trying to figure out how to stop me, they’re trying to penalize me because I would not accept the $15,000 a month deal that they offered me for the fake job on the Trump campaign.”

Translation: Come after me and I dump everything I have. “She may be the purest of all the Trump characters,” said one source to Jonathan Swan of Omarosa. “She may be the most Trumpian.” Indeed. And there really might be more:

You’re left to wonder if the habit she and Michael Cohen share of recording people is a coincidence or a lesson they independently gleaned about how TrumpWorld operates. If the boss is mercurial, if you might be ostracized and lied about ruthlessly by falling out of his favor, if you’re constantly jockeying with rival power centers for his attention, basic self-preservation requires you to generate some leverage. Even if it’s a national-security disaster in the making.

If the NDA thing doesn’t work out, Trump could always send the DOJ after her for recording inside secure facilities. That might be a venial sin — like taping Kelly in the Situation Room — or a mortal one, if there’s any classified information on the audio. Here’s a new ad from the RNC attacking Omarosa, another development that would have seemed completely, insanely hallucinatory as recently as three years ago and now is all in a day’s work for the Republican Party. Exit question: Omarosa’s going to retain Michael Avenatti to defend her on the NDA suit, isn’t she?

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David Strom 12:31 PM on December 07, 2022