Another Monday, another disturbing example of how Donald Trump has zero understanding of the concept of government. It’s now being reported that Donald Trump pressured senior White House staffers into signing nondisclosure agreements as a condition of their employment. That’s right. Our president is so obsessed with shielding himself from trash-talk that he has abandoned even the perception that he is a public servant who reports to the American people.
According to The Washington Post:
“In the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign nondisclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation. Some balked at first but, pressed by then-Chief of Staff Reince Priebus and the White House Counsel’s Office, ultimately complied, concluding that the agreements would likely not be enforceable in any event.”
Oh and those potential “penalties”? Apparently, the first figure thrown out by Trump was $10 million, payable to the federal government. And according to the source, the nondisclosure obligations were actually meant to extend beyond the time the employees worked in the White House – and even beyond the term of Trump’s presidency. Ridiculous.
Public employees can’t be gagged by private agreements. These so-called NDAs are unconstitutional and unenforceable. https://t.co/IyYqScsESu
— ACLU (@ACLU) March 19, 2018
There are times when the ACLU, for better or for worse, pushes legal boundaries. This is not one of those times. This is one of those, “that’s not how the law works, you troupe of unimaginable dumbasses,” times. The very idea of these nondisclosure agreements is so far from proper that they constitute definitive proof that Trump’s lawyers are simply uninterested in operating within the confines of accepted law.
Richard Painter, the chief White House ethics lawyer under President George W. Bush, called it:
He thinks the White House is the Trump Organization, that the staffers are Stormy Daniels.
These NDAs aren’t worth the paper they are printed on.Trump pushed White House staff to sign non-disclosure agreements: report https://t.co/S3wjCnMuIE via @KCENNews
— Richard W. Painter (@RWPUSA) March 19, 2018
There is literally so much wrong with these agreements that the scenario wouldn’t even work as a law-school exam question. There aren’t two arguable sides – just buckets and buckets of, “it doesn’t work like that,” with a twist of, “this isn’t a dictatorship, you clown.” But just for fun, let’s hit some basics. First, there’s a major glitch that relates to the parties to the agreements. White House staffers work for the United States, not for Donald J. Trump. I realize that Trump thinks those are one in the same, but he also thinks that Big Macs are haute cuisine, so there’s some precedent for error. Staffers are not employed by, paid by, or beholden to Donald Trump as an individual; I get that he’s their boss, but people in both the private and public sectors often have bosses. Bosses are separate from the institutions or organizations by which they are employed. It’s not that tough of a concept. We lawyers handle it all the time. That’s why CEO’s, mayors, governors, and presidents have “private lawyers,” who differ from the organizations’ lawyers.
I know that Trump thinks he’s “running the country like a business,” and despite the obvious (that the country isn’t a business, and Trump is actually pretty awful at running his businesses), the glaring problem is that this is not how running a business would work. When employees work for a corporation, they work for that corporation, not for its CEO. If they sign NDAs, those agreements relate to trade secrets or other sensitive dealings of the business.
Even without such a fundamental flaw in these NDAs, there’s also the not-so-little problem of the content of the agreements. I’ll let my colleague Ronn Blitzer discuss the myriad face-palm-inspiring First Amendment issues, and I’ll stick to basic contract law. When agreements are overly restrictive or punitive, they just don’t work. Here, we’ve got a contract that purportedly prohibits government employees from talking to anyone about their time serving or government. The time period is absurdly long, the restrictions are absurdly strict, and the penalty clause is absurdly harsh. Reportedly, staffers were forced to agree that they would refrain even from discussing “communications with members of the press,” as well as those “with employees of federal, state, and local governments.” And there’s even more. Former staffers aren’t even allowed to discuss White House operations for works of fiction. This is some next-level authoritarian-flavor crazy, people.
Plus, the automatic $10 mil price-tag for violations would fall squarely into the “unenforceable penalty” category. Again, contract law just doesn’t work that way. Liquidated damages clauses are only enforceable when they are a reasonable forecast of actual damages; I know the point here was to scare staffers into silence, but honestly, I’d have expected Trump’s lawyers to have at least tried to make this look like a real contract.
While attending to the many, many issues with contract formation, unconscionability based on disparity in bargaining power, and generally unenforceable terms, let us not neglect the mother of all contract killers. For the finale, there’s the famed, “void for violation of public policy,” which would kill an agreement like this before anyone could be strong-armed into signing anything.
Courts will not enforce contracts when the subject of those contracts offends public policy. Don’t take my word for it. Let’s consult a legal dictionary:
“Certain acts or contracts are said to be against public policy if they tend to promote breach of the law, of the policy behind a law or tend to harm the state or its citizens. … This is known as the doctrine of public policy and it is an important part of contract law…”
So that’s pretty clear. I think it’s safe to say that I’m hardly espousing any radical interpretation of the law to conclude that allowing one elected official to bully government employees into absolute silence about their time working in our government, “tends to harm the state or its citizens.” And don’t give me any garbage about sensitive government information and national security. We already have a system to protect that stuff, and it has nothing to do with nondisclosure agreements.
Let’s see. Where does this leave us? We have a president who is hell-bent on using the full power of the federal government to glorify himself at the expense of any and all of our national values. He has no inclination to understand the government itself or his role in it. His people are either unwilling or unable to exercise control over him, and no one else seems poised to limit him. So basically, exactly where we were even before we knew about these NDAs.
This is an opinion piece. The views expressed in this article are those of just the author.
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