For the first time we have confirmation from the administration of a fact Ruth Marcus reported earlier this year: That at least some of Donald Trump’s White House staffers have signed nondisclosure agreements (NDAs). This leads to a number of questions that are likely to be reported out over the next few days:
(1) Who is the other party to the NDAs? If a staffer signs a nondisclosure agreement, who is that agreement with? Is it Donald Trump, private citizen? Donald Trump, president of the United States? The Trump Organization? The U.S. government?
This is important for two reasons. First, it determines who would be taking action in case of a breach. If the government or an agent of the government is the other party, then who would determine whether or not to move forward if the contract is breached? But second, if it’s a private individual or organization, then how can they bind the actions of public employees?
(2) Who signed the NDAs? Was it only senior White House staff? Was it Cabinet-level appointees elsewhere in the executive branch?
(3) Was the signing of an NDA a condition of receiving a government appointment? Unless the president’s lawyers were very stupid—which is unlikely, since Trump, by his own declaration, only hires the best people (except for when he hires lowlifes)—this was probably never stated explicitly. So instead we might ask if there were any staffers asked to sign NDAs, who then refused to sign?
(4) Were Jared and Ivanka Kushner asked to sign NDAs? It introduces an entirely new complication if all of the senior White House staff was asked to sign an NDA except for Trump’s family.
(4)(a) Were Jared and Ivanka Kushner covered by the NDA?
(5) How far into the future do the Trump NDAs reach? For instance, if you were a former spokesman for Trump’s White House who signed an NDA, are you contractually prohibited from saying anything that could be judged as critical or deragatory about Trump or members of the Trump family in perpetuity? Because if so, that would mean that you probably shouldn’t be given a platform—on, say, a cable news channel—to opine about Trump, because you’re not allowed to say what you really think.
(5)(a) Did Sean Spicer sign an NDA and if so, does it mean that he was contractually prohibited from saying anything critical or deragatory about Trump or the Trump family in his new book, The Briefing?
(5)(b) If Spicer did sign an NDA and it did extend past his term of employment in the White House, did his publisher, Regnery, know about it?
(6) Serious legal people have tended to dismiss Trump’s NDAs as being nonenforceable. That may be true, but the purpose of an NDA isn’t to be enforced—it’s to obstruct the revelation of information by making such revelations costly. Could requesting the execution of NDAs by public employees be a form of obstruction of justice?
