This may be news to some, even some in the highest echelons of our government, but government employees are public servants. Let me repeat — they are hired to serve the public, even if it doesn’t always seem like it. They are also paid with public funds. And therefore, barring national security or significant privacy concerns, government employees should be able to tell the public — who they work for — about their service in government.
The Trump administration seems not to understand this, however. In fact, the president of the United States has reportedly demanded that his employees sign non-disclosure agreements (NDAs). According to the Washington Post, these NDAs appear to be designed to last beyond Trump’s presidency.
Of course, Trump can attempt to bully or cajole his employees into signing any agreement he wants. But are those agreements enforceable? It seems unlikely. There's a strong case to be made that NDAs signed by White House employees violate the First Amendment and also public policy, making it doubtful that a court would agree to enforce them.
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While the idea of White House NDAs is not exactly new, the unorthodox agreements — and their ethical and legal implications — have been thrust into the news again thanks to the antics of former White House staffer Omarosa Manigault Newman. Manigault Newman has a new tell-all book to sell — and several secretly recorded tapes detailing conversations with both Trump and senior staff members. In the flurry of news coverage that followed her claims, White House counselor Kellyanne Conway admitted: “We have confidentiality agreements in the West Wing, absolutely we do.”
Former Presidents Bill Clinton and Barack Obama both put limits on departing staffers, for instance asking them not to lobby their former colleagues. These limits have not been fully tested in the court system. But intent is important here: That type of so-called “revolving door” restriction is designed to ensure that government agencies serve their constituents, and to guard against undue influence over government employees. Trump's non-disclosure agreements appear to be designed to protect the reputation of the president, and not to help the public.
NDAs are also probably illegal. A draft of the agreement obtained by the Washington Post indicates that White House staffers are prohibited from disclosing “confidential” information. If that word sounds broad and open to interpretation, it is. The agreement defined it as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff.” And if “all nonpublic information” sounds like an overly vague way to define what confidential information is, it is.
Even if we could divine what is covered by these agreements, such NDAs would be very hard to enforce for a number of reasons.
Even if we could divine what is covered by these agreements, such NDAs would be very hard to enforce for a number of reasons. Consider the Freedom of Information Act (FOIA). FOIA is a federal law which allows individuals to obtain access to certain records from federal agencies. It is pretty easy to see how a FOIA request could conflict with a non-disclosure agreement. A FOIA request might, for instance, cover a request for information on a government contract or grant or an unpublished policy statement, the substance of which is otherwise “nonpublic.”
There are also federal whistleblower laws which protect government employees who report certain activities. It is not outside the realm of possibility that an employee would want to report information covered by both a whistleblower law and a non-disclosure agreement. For instance, an employee may wish to report allegedly corrupt activities which are otherwise “nonpublic.”
Perhaps the biggest legal issue raised by the non-disclosure agreement has to do with the First Amendment. Government employees can and do give up certain rights, including some First Amendment rights, when they enter government service. But non-disclosure agreements of this type use vague and threatening language in order to chill and silence speech. Protecting the president from bad press does not warrant such an erosion of the Constitution.
It is also worth taking a gander at the penalty for violating these agreements. According to the Post's draft, the penalty for violating the NDA was (at least at one point) listed at a whopping $10 million. In subsequent drafts of the agreement this figure was likely lowered. But the punitive nature of the penalty strengthens the likelihood that these NDAs violate the First Amendment. (And where does this money go? Under the draft agreement, it would go to the federal government.)
On Tuesday it was reported that the Trump campaign has filed for arbitration against Manigault Newman, claiming that she broke a 2016 nondisclosure contract she signed during the 2016 presidential campaign. It's important to note here that an NDA signed by a campaign staffer is different from one signed by a government employee. A contract between a campaign staffer and a campaign is between private individuals. By contrast, a contract between a government employee and her employer raises different issues because a government employer is attempting to silence speech and prevent the public from learning about the work of public employees.
But Manigault Newman's ongoing dispute with Trump should not distract from broader issues of speech in the White House. When it comes to government employees, the name of the game is transparency. Absent issues related to classified information, we are entitled to know what public employees are doing.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles and the former president of the Los Angeles Ethics Commission. She tweets at @LevinsonJessica.