At last an answer to the soon-to-be-historical trivia question, “What did Steve Bannon and Stormy Daniels have in common?”
Besides “They both screwed Trump,” I mean.
Legal eagles: On what grounds are these contracts unenforceable, assuming they really do exist? Are they unenforceable?
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…
Moreover, said the source, this confidentiality pledge would extend not only after an aide’s White House service but also beyond the Trump presidency. “It’s not meant to be constrained by the four years or eight years he’s president — or the four months or eight months somebody works there. It is meant to survive that.”…
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.
One odd thing off the top: It’s not WaPo’s investigative reporters that got a copy of the alleged draft agreement, it’s op-ed columnist Ruth Marcus, who says it was forwarded to her after she wrote a piece about Trump’s habit of bullying adversaries into silence. If there really are NDAs, how can it be that a year passed without that fact leaking to the WaPo or NYT or WSJ news desks?
On the other hand, 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.
It’s also surely unenforceable, she claims, “laughably unconstitutional,” a clear violation of the employees’ First Amendment rights. Uh, okay, but I’d like to know more about the agreement before assuming that. For instance, who signed it on Trump’s side? Was it Trump himself in his individual capacity or was it White House counsel Don McGahn on behalf of the executive branch? A contract between an individual and the federal government would obviously have more First Amendment implications than a contract between two individuals in their private capacities, even if one happens to be the president. If citizen X and citizen Y sign an NDA barring Y from disclosing anything during his time as a government employee, does the mere fact that Y works for the government mean that the First Amendment bars that contract? Doesn’t seem like a slam dunk to me but I’ll defer to litigators and law profs.
Even if the contract was between the employee and the federal government (and maybe it was, per what Marcus says about damages being payable to the treasury in case of breach rather than to Trump), it’s not clear to me that that would necessarily present a First Amendment problem, specifically. Lots of government jobs require hires not to disclose certain types of information as a condition of their employment. If you can gag a federal employee about classified info, could you also gag them via separate agreement about all “nonpublic” info they accessed in the course of their work? Do they have a constitutionally protected right to disclose that information that they can’t voluntarily waive? Because that’s what an NDA is. It’s a waiver of your right to speak about a particular subject.
There are two lines of attack on the NDAs that seem more obvious to me than the First Amendment. One: What did each employee receive in return for agreeing to these deals? You can’t have a binding contract without “consideration,” after all. The consideration in Stormy Daniels’s NDA was $130,000. The consideration in the White House NDAs was … what? Don’t say “their job.” It sounds from Marcus like some or all of the NDAs were signed in February or March 2017, after Trump had been sworn in and the leaking began, which is to say that these people already had jobs with the White House. What extra consideration did they get for signing the NDA afterward? If there’s no consideration, there’s no contract. Even if some employees signed an NDA as part of the initial hiring process, you could argue that they still deserved separate consideration for that given that federal jobs come with federally mandated pay. E.g., if you’re a deputy staffer in the West Wing and by law your job carries a $100,000 salary, you should be getting paid more than $100K if you accepted that position *and* signed an NDA at Trump’s request. If you aren’t then presumably the NDA’s not binding for that reason alone.
The other line of attack is that, even if there’s consideration, the NDAs are unenforceable because they’re against public policy. Sometimes when judges encounter a contract that would have bad consequences for society if it was popularized, they’ll refuse to enforce it for that reason alone. For instance, if a rich man offered you $100,000 for your kidney and you initially agreed, and it so happened that your state didn’t formally bar organ sales, a court might still throw out the contract because … ew. If it didn’t, soon you’d have sick rich people all over the place trying to bribe the healthy poor into trading a little spare viscera for hard cash. (Sorry, libertarians!) A court might chuck the Trump NDAs for the same reason: If you can gag White House employees with threats of hefty damages if they blab, whistleblowers won’t be able to report nefarious government activity. In a democracy government should be accountable to the public; NDAs for influential government employees are repugnant to that ideal. If the Trump NDAs were allowed to stand, suddenly officials at every level would start looking at them and American government in its entirety would become less transparent. So they wouldn’t be allowed to stand. I assume that’s what Marcus means when she calls them “laughably unconstitutional.” They’re laughably bad policy, for sure, whether or not they’re unconstitutional.
Anyway, exit question: If all of the big-name Trump advisors are under NDAs, how come Steve Bannon hasn’t been sued yet for all but co-writing “Fire and Fury” via his leaks to Michael Wolff? And does this mean we’re not going to get a Rex Tillerson — or Hope Hicks — tell-all?