openpolitics.com

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.”