The Constitution won’t let Trump silence White House aides

No matter how much the president loves them, the government can only enforce nondisclosure agreements for classified information.

Part of the outrage on the president’s part seems to be over Manigault Newman breaking what Trump saw as a promise not to talk about her time working for him. White House counselor Kellyanne Conway told ABC News: “We have confidentiality agreements in the West Wing — absolutely we do.” And Manigault Newman claims in her book that Trump’s reelection campaign offered her a $15,000-a-month salary in exchange for signing a confidentiality agreement.

.. NDAs for government workers, when they go beyond prohibiting the disclosure of classified information, are unconstitutional on their face.

.. For decades, courts have made it clear that the government may not censor unclassified material, “contractually or otherwise.”

.. I have reviewed one document that is purportedly a version of the White House NDA. It appeared to be nothing more than a Trump Organization document that was modified to apply to White House staff — in fact, it still had a provision that in any litigated dispute, the parties agreed that New York state law would apply, language that no standard federal document would ever have used.
.. It was also publicly reported that one early draft of a White House NDA contained a provision that imposed a $10 million fine to be paid to the federal government if the signatory shared confidential information.
.. While the term “confidential” in D.C. parlance is part of the national security classification framework, in these NDAs, it referred to potentially derogatory and unclassified information pertaining to the president.
.. These NDAs also ignored earlier guidance from the Office of Management and Budget that any NDAs should contain whistleblower protection provisions, clauses that would be contrary to the clear message desired by this administration.
.. his campaign entity, Donald J. Trump for President Inc., rather than the U.S. government, has reportedly filed for arbitration against Manigault Newman seeking millions for a violation of a 2016 NDA.
.. The NDA allegedly required her to keep proprietary information about the president, his companies or his family confidential and to never “disparage” the Trump family “during the term of your service and at all times thereafter.” This clause is in direct conflict with the legal precedents governing federal employees, but how an arbitration body will interpret constitutional questions is anyone’s guess.
.. In an April 2016 interview with The Washington Post, the future president said he supported making federal employees sign NDAs.
“I think they should,” Trump said. “. . . When 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.”

.. In 1961, President John F. Kennedy said the “very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings.”

Free-speech conservatives, this is your call to arms

To all those supposed constitutional conservatives out there, consider this your call to arms: The First Amendment is under direct attack, and this time from a much more powerful foe than misguided college freshmen.

By whom I mean: the ostensible leader of the free world.

Again and again, President Trump has used the weight of his office and the broader federal government to inflict financial damage upon critics, whistleblowers, journalists and peaceful protesters for exercising their rights to free speech.

Trump’s most recent salvo involves former CIA director John Brennan. During his long career in intelligence, Brennan briefed Republican and Democratic presidents alike. Which makes his fierce criticism of Trump, and his characterization of Trump’s Helsinki performance as “treasonous,” all the more biting.

.. Such comments led Trump to revoke Brennan’s security clearance Wednesday. The administration said Brennan no longer needed clearance because it didn’t plan to call on him for consultations. But high-level clearances are valuable for private-sector work as well.

In other words, this was about shutting Brennan’s mouth by going after his wallet.

.. And that is but one way Trump has tried to silence critics just this week.

A day earlier, Trump’s campaign said it had filed an arbitration action against Omarosa Manigault Newman alleging that the former White House aide broke a 2016 nondisclosure agreement by publishing her recent tell-all book.

.. And that is but one way Trump has tried to silence critics just this week.

That the party bringing the claim here is technically a campaign, rather than, say, the Justice Department, doesn’t matter. The First Amendment is supposed to protect those critical of their government, including critics of its highest officeholder, from political retribution. And political retribution laundered through an election campaign at the president’s instruction is retribution all the same.

.. Elsewhere — again, in recent days — the president and his minions have called the press the enemy of the people and the opposition party. Previously they have blacklisted reporters and entire news outlets (including The Post) whose questions Trump disliked.

.. When unhappy with Post coverage in particular, Trump has threatened government action against Amazon in an apparent attempt to financially punish its chief executive, Jeffrey P. Bezos, who independently owns the paper.

.. Journalists and media owners are hardly the only ones whose job or financial security Trump has targeted from his bully pulpit. He called for the firing of National Football League players who kneel in protest during the national anthem. NFL owners, in a secretly recorded meeting in October, expressed concern about the president’s impact on their bottom line.

Curiously, Republican politicians and conservative pundits who call themselves staunch defenders of the Constitution have allowed, and at times encouraged, the president to run roughshod over the First Amendment.

Republican Sens. Rand Paul (Ky.), John Neely Kennedy (La.) and Ron Johnson (Wis.) celebrated Trump’s revocation of Brennan’s security clearance.

Sen. Charles E. Grassley (R-Iowa), who as chair of the Senate Judiciary Committee oversaw a hearing titled “Free Speech 101: The Assault on the First Amendment on College Campuses,” refused to condemn Trump’s calls for the firing of NFL players engaged in peaceful protest. Instead, in September, he attacked the media for giving the “false impression” that Trump spent too much time attacking the NFL.

.. Polls in the past couple of years have shown that pluralities and, quite often, majorities of Republicans say that they, too, consider the media the enemy of the people; believe that the president should have the authority to close news outlets that he believes behave badly; and favor firing NFL players who refuse to stand for the anthem and stripping citizenship from anyone who burns the flag.

Mueller Examining Trump’s Tweets in Wide-Ranging Obstruction Inquiry

WASHINGTON — For years, President Trump has used Twitter as his go-to public relations weapon, mounting a barrage of attacks on celebrities and then political rivals even after advisers warned he could be creating legal problems for himself.

Those concerns now turn out to be well founded. The special counsel, Robert S. Mueller III, is scrutinizing tweets and negative statements from the president about Attorney General Jeff Sessions and the former F.B.I. director James B. Comey, according to three people briefed on the matter.

.. Several of the remarks came as Mr. Trump was also privately pressuring the men — both key witnesses in the inquiry — about the investigation, and Mr. Mueller is examining whether the actions add up to attempts to obstruct the investigation by both intimidating witnesses and pressuring senior law enforcement officials to tamp down the inquiry.

.. Trump’s lawyers said. They argued that most of the presidential acts under scrutiny, including the firing of Mr. Comey, fall under Mr. Trump’s authority as the head of the executive branch and insisted that he should not even have to answer Mr. Mueller’s questions about obstruction.

But privately, some of the lawyers have expressed concern that Mr. Mueller will stitch together several episodes, encounters and pieces of evidence, like the tweets, to build a case that the president embarked on a broad effort to interfere with the investigation. Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.

.. the nature of the questions they want to ask the president, and the fact that they are scrutinizing his actions under a section of the United States Code titled “Tampering With a Witness, Victim, or an Informant,” raised concerns for his lawyers about Mr. Trump’s exposure in the investigation.

.. “If you’re going to obstruct justice, you do it quietly and secretly, not in public,” Mr. Giuliani said.

.. federal investigators are seeking to determine whether Mr. Trump was trying to use his power to punish anyone who did not go along with his attempts to curtail the investigation.

.. Investigators want to ask Mr. Trump about the tweets he wrote about Mr. Sessions and Mr. Comey and why he has continued to publicly criticize Mr. Comey and the former deputy F.B.I. director Andrew G. McCabe, another witness against the president.

.. They also want to know about a January episode in the Oval Office in which Mr. Trump asked the White House counsel, Donald F. McGahn II, about reports that Mr. McGahn told investigators about the president’s efforts to fire Mr. Mueller himself last year.

.. Mr. Trump has navigated the investigation with a mix of public and private cajoling of witnesses.

.. Around the time he said publicly last summer that he would have chosen another attorney general had he known Mr. Sessions was going to recuse himself from the Russia investigation, Mr. Trump tried behind closed doors to persuade Mr. Sessions to reverse that decision. The special counsel’s investigators have also learned that Mr. Trump wanted Mr. Sessions to resign at varying points in May and July 2017 so he could replace him with a loyalist to oversee the Russia investigation.

.. Mr. Trump issued an indirect threat the next day about Mr. Comey’s job. “It’s not too late” to ask him to step down as F.B.I. director, he said in an interview with Maria Bartiromo on Fox Business Network. The special counsel wants to ask the president what he meant by that remark.

.. Mr. Sessions, his aide told a Capitol Hill staff member, wanted one negative article a day in the news media about Mr. Comey, a person familiar with the meeting has said.

.. By the fall, Mr. Comey had become a chief witness against the president in the special counsel investigation, and Mr. Trump’s ire toward him was well established. His personal attacks evolved into attacks on Mr. Comey’s work, publicly calling on the Justice Department to examine his handling of the Clinton inquiry — and drawing the special counsel’s interest.

.. Mr. Trump’s lawyers have pushed back against the special counsel about the tweets, saying the president is a politician under 24-hour attack and is within his rights to defend himself using social media or any other means.

.. The president continues to wield his Twitter account to pummel witnesses and the investigation itself, ignoring any legal concerns or accusations of witness intimidation.

 

We All Live on Campus Now

When elite universities shift their entire worldview away from liberal education as we have long known it toward the imperatives of an identity-based “social justice” movement, the broader culture is in danger of drifting away from liberal democracy as well.

If elites believe that the core truth of our society is a system of interlocking and oppressive power structures based around immutable characteristics like race or sex or sexual orientation, then sooner rather than later, this will be reflected in our culture at large. What matters most of all in these colleges — your membership in a group that is embedded in a hierarchy of oppression — will soon enough be what matters in the society as a whole.

.. The idea of individual merit — as opposed to various forms of unearned “privilege” — is increasingly suspect.

..  Any differences in outcome for various groups must always be a function of “hate,” rather than a function of nature or choice or freedom or individual agency

.. Polarization has made this worse — because on the left, moderation now seems like a surrender to white nationalism, and because on the right, white identity politics has overwhelmed moderate conservatism.

.. Trump plays a critical role. His crude, bigoted version of identity politics seems to require an equal and opposite reaction.

.. there’s a huge temptation to respond in kind.

.. anger is rarely a good frame of mind to pursue the imperatives of reason, let alone to defend the norms of liberal democracy.

..  Liberals welcome dissent because it’s our surest way to avoid error. Cultural Marxists fear dissent because they believe it can do harm to others’ feelings and help sustain existing identity-based power structures.

..  the impulse to intimidate, vilify, ruin, and abuse a writer for her opinions chills open debate.

.. An entirely intended byproduct of this kind of bullying — and Roiphe is just the latest victim — is silence.

.. only a member of a minority group can speak about racism or homophobia, or that only women can discuss sexual harassment.

.. The only reason this should be the case is if we think someone’s identity is more important than the argument they might want to make

..  left-feminists are not just interested in exposing workplace abuse or punishing sex crimes, but in policing even consensual sex for any hint of patriarchy’s omnipresent threat.

..  In the struggle against patriarchy, a distinction between the public and private makes no sense.

.. There’s a reason that totalitarian states will strip prisoners of their clothing. Left-feminists delight in doing this metaphorically to targeted men — effectively exposing them naked to public ridicule and examination because it both traumatizes the object and more importantly sits out there as a warning to others.

.. Besides, if they’re innocent, they’ll be fine!

.. can anyone justify why the POSSIBLE innocence of men is so much more important than the DEFINITE safety and comfort of women?”

..  we now have a “gender editor” at the New York Times, Jessica Bennett

.. Does she understand that the very word intersectional is a function of neo-Marxist critical race theory? Is this now the guiding philosophy of the paper of record?

.. At The Atlantic, the identity obsession even requires exhaustive analyses of the identity of sources quoted in stories. Ed Yong, a science writer, keeps “a personal list of women and people of color who work in the beats that I usually cover,” so he can make sure that he advances diversity even in his quotes.

..  there is no art that isn’t rooted in identity.

.. I don’t doubt the good intentions of the new identity politics — to expand the opportunities for people previously excluded. I favor a politics that never discriminates against someone for immutable characteristics

.. what we have now is far more than the liberal project of integrating minorities. It comes close to an attack on the liberal project itself. Marxism with a patina of liberalism on top is still Marxism — and it’s as hostile to the idea of a free society as white nationalism is.

.. the core concepts of a liberal society —

  • the individual’s uniqueness,
  • the primacy of reason,
  • the protection of due process,
  • an objective truth

— are so besieged, this is one of the reasons.

.. The goal of our culture now is not the emancipation of the individual from the group, but the permanent definition of the individual by the group. We used to call this bigotry. Now we call it being woke. You see: We are all on campus now.

.. prudence that worries about unintended consequences; that values thrift; that tries to insure itself against future risks; that takes the responsibility of government seriously; that worries about extreme rhetoric; that balances the budget; that insists on constantly taking pains to protect inconvenient constitutional norms; that defends existing institutions. I could go on. It all began with Burke’s recoil from the French Revolution.

.. Is there any institution in the West that is currently less conservative than the GOP?

.. No institution that is integral to our liberal democracy is immune from attack. This includes law enforcement (the FBI), the Justice Department, an independent and free press, the prerogatives of the opposition party, and regular order in the Congress.

It is a party that would impeach a State Supreme Court rather than give up its gerrymandered districts.

.. its cult leader never misses an opportunity to deepen racial divides and to inflame the gender wars.

.. Whatever else this record is, it is an open and outright assault on any concept of prudence, responsibility, or moderation. Which is to say it is an assault on conservatism itself.

.. If there is any future for the conservative soul and mind in America, it will have to start with the wholesale destruction of the current Republican Party. I made that case more than a decade ago now.