President Donald Trump and his allies have recently touted the existence of nondisclosure agreements with White House employees as a response to estranged former employee Omarosa Manigault Newman’s attacks on Trump.
The NDAs were first revealed by the Washington Post last March and later confirmed by the New York Times. The Times’ story indicated that the agreements were reportedly drafted in order to appease Trump, who was looking to deter would-be leakers, and was for the most part toothless and unenforceable. However the White House had, up until now, declined to acknowledge the NDA’s existence, and details of the rumored documents remain sparse.
But White House counselor Kellyanne Conway broke the administration’s silence on the issue over the weekend during a cable interview. “I’m told [Omarosa] signed [NDAs] when she was on The Apprentice, certainly at the campaign. We’ve all signed them in the West Wing,” she said. Then Trump followed up on Monday, separately confirming in a tweet that Manigault Newman had signed an NDA. It was unclear whether the president was referring to a previous agreement from his television show, or from the campaign, or one that she had signed during her employment at the White House.
Mark Zaid, a Washington-based attorney who focuses on government and national security, said that if White House employees were asked to sign an NDA limiting post-employment, unclassified speech, it would represent a breach of constitutional rights.
It’s entirely inappropriate & likely unconstitutional to require Fed employees to sign NDA that applies post-employment beyond classified info. We’ll rep anyone who has signed & wishes to challenge such agreement pro bono.
— Mark S. Zaid (@MarkSZaidEsq) August 13, 2018
During a phone call on Monday, Zaid told THE WEEKLY STANDARD that he had previously seen a version of a White House NDA, and that the U.S government—not a private organization (such as the Republican National Committee) or the Trump campaign)—had been party to that agreement. He could not determine whether the NDA he saw was merely an early draft or a final document.
“What it looked to be is simply a Trump Corporation NDA, converted to be used for those working in the White House,” he said.
Zaid, who works frequently on cases involving national security, free speech, and non-disclosure agreements, said that the potential use of an NDA for unclassified information would represent a remarkable split from previous administrations. In the private sector, non-disclosure agreements and non-compete clauses are not out of the ordinary, but such agreements are not typical within the government. Most government NDAs are used in relation to classified national security information.
Of course, the lack of firm details about the NDA makes it difficult to judge its legality. (Read Jonathan V. Last on the questions that have yet to be answered about these agreements.) But, according to Zaid, “The courts have been clear that any NDA that extends beyond classified information would be unconstitutional as an infringement of free speech.”
