If you’re eagerly awaiting juicy tell-alls from Gary Cohn, Hope Hicks, Reince Priebus, or any of the multitude of Trump administration officials who have headed for the exits, don’t hold your breath: The president has reportedly required staffers to sign nondisclosure agreements that last, essentially, forever.
Ruth Marcus at the Washington Post on Sunday reported that President Trump, in the early months of his administration, asked White House staff members to sign nondisclosure agreements vowing not to reveal confidential information. And his staffers complied.
A copy of a draft of the document obtained by Marcus said those who violate the agreement would be exposed to $10 million in penalties for each unauthorized revelation of confidential information — an enormous amount that she suggests probably didn’t make it into the final draft. It bars staff from discussing “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,” including “communications . . . with members of the press” and “with employees of federal, state, and local governments.” It also prohibits “works of fiction” that mention government operations or are based on confidential information.
And the agreement has no end date, meaning it essentially keeps former staffers from speaking out forever.
A source told Marcus that the decision to implement the agreements came about in February or March 2017, when there was “lots of leaking, things that just weren’t true, and a lot of things that were true and should have remained confidential.” Trump hoped to quell leaks by making sure staff knew they could be “on the hook for some serious damages.”
White House deputy press secretary Hogan Gidley told reporters onboard Air Force One on Monday that the Post’s report was “completely false.” He said, “I’ve never seen one, I’ve never been asked to sign one and I’ve never signed one.”
The use of such agreements in the White House, per Marcus, is unprecedented and likely unconstitutional:
This is extraordinary. Every president inveighs against leakers and bemoans the kiss-and-tell books; no president, to my knowledge, has attempted to impose such a pledge. And while White House staffers have various confidentiality obligations — maintaining the secrecy of classified information or attorney-client privilege, for instance — the notion of imposing a side agreement, supposedly enforceable even after the president leaves office, is not only oppressive but constitutionally repugnant.
Unlike employees of private enterprises such as the Trump Organization or Trump campaign, White House aides have First Amendment rights when it comes to their employer, the federal government. If you have a leaker on your staff, the cure is firing, not suing.
Think Trump won’t try to use the NDA to silence staffers? Look at Stormy Daniels.
Trump is no stranger to trying to use the legal system to get his way: USA Today found during the 2016 campaign that Trump and his businesses had been involved in at least 3,500 legal actions in state and federal courts over the course of three decades.
And right now there is one particular nondisclosure agreement that has Trump back in court — the one keeping Stormy Daniels quiet. The adult film actress, whose real name is Stephanie Clifford, allegedly had an affair with Trump in 2006. Trump’s personal lawyer Michael Cohen paid Daniels $130,000 ahead of the 2016 election to keep her from speaking publicly about it, but in recent weeks, Daniels has indicated she wants to talk.
President Trump has tried to keep the saga at arm’s length, but on Friday he got into the mix. His lawyers filed two motions in the United States District Court in California, where Daniels sued to get out of the NDA that bars her from speaking out about the alleged affair, saying that Daniels has violated the agreement at least 20 times and could be subject to damages of $20 million.
Michael Avenatti, Daniels’s attorney, slammed Trump’s team for a “bullying tactic” in pursuing such an enormous sum from a private citizen over “bogus” damages in a maneuver that is “likely unprecedented in our history.” He said their attempts to move the case from the state court in Los Angeles where Daniels filed her claim to a federal court is because it would increase the chances that the matter will be decided in private arbitration, “thus hiding the truth from the public.”
The fact that a sitting president is pursuing over $20M in bogus 'damages' against a private citizen, who is only trying to tell the public what really happened, is remarkable. Likely unprecedented in our history. We are NOT going away and we will NOT be intimidated. #basta— Michael Avenatti (@MichaelAvenatti) March 17, 2018
CBS’s 60 Minutes reportedly plans to air an interview with Daniels on Sunday, March 25. If the sit-down hits the airwaves, it will be the Trump team’s move to see what they do next. Current and former staffers might be paying attention too.
Update: Updated with White House denial.