Omarosa’s nondisclosure agreement could give her big legal problems

So, what exactly is a nondisclosure agreement and why does this matter to the Omarosa-Kelly recording? The bottom line is that the White House is fully within its legal right to protect confidential information by requiring an NDA from employees and then investigating or filing suit for a potential breach.

An NDA is essentially a legally enforceable contract between parties — a provider and recipient of confidential information — that the information deemed confidential will be kept secret by the receiving party. NDAs are a standard requirement for any situation that deals with receiving information that the provider wants to ensure remains confidential. As an attorney, I would be more surprised if any White House administration did not require some form of NDA, given the sensitive nature of high-level government work and how standard and commonplace NDAs are in the business world.

An employee of any type of business may be required as a condition of employment to sign an NDA that confidential information learned as a result of that employment is subject to nondisclosure. This makes sense because, except for the person’s employment with that business, they would not have learned of or had access to the information on their own. Many private and government employers use standard NDAs as a condition of employment to ensure that sensitive information is not released to the public or used for the recipient’s own benefit, whether it be for financial or other gain.

The key provisions of an NDA trigger a two-part duty for the recipient of the information: to not disclose confidential information and to not use the confidential information for yourself. This is also very straightforward and while the information deemed confidential may vary from NDA to NDA, the core legal obligations are the same.

Importantly, NDAs are not in place to “cover up” information, but are a legitimate legal tool to protect the privacy of information shared with the recipient. NDAs are generally governed by contract law, so violating the terms of a valid NDA would not result in criminal prosecution or jail time, but could result in significant monetary awards and other consequences, depending on the terms of the NDA.

This matters to the current Omarosa-Kelly recording for several reasons. First, even if Omarosa avoids criminal prosecution, she may still face substantial legal consequences for breaching an NDA. Second, the extent of legal exposure she might be facing depends on the language of the specific NDA she may have signed, as it’s up to the parties (staying within the bounds of contract law) what the terms are and what damages are recoverable for breach.

Because Omarosa very likely could have more recorded conversations from her White House tenure and is clearly okay with disclosing information about her time in the White House to the public, The president’s legal counsel could request a court order for a preliminary injunction to stop her from releasing any other information (not just limited to recordings) until there can be a judicial determination whether or not that information is subject to the terms of an NDA and must be kept confidential.

At minimum, the fact that Omarosa recorded a conversation in the Situation Room is itself enough to destroy her credibility and prove why she was removed from the White House for lack of integrity and questionable ethics.

Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].