Paper Cuts: Campaign Confidential

As everybody knows by now, President Trump is an avid fan of confidentiality contracts. He has reportedly used non-disclosure agreements, commonly referred to as NDAs, to silence his personal and professional contacts and prevent them from unauthorized tale-telling ever since attorney Roy Cohn was his mentor.

Secrecy agreements have long been accepted conditions in civil business matters, usually to protect “intellectual property” (also called “trade secrets”) from falling into the hands of competitors. These agreements aren’t absolute, though: civil courts and arbitration venues have ruled that NDAs cannot unduly interfere with individual free speech rights, preclude legal obligations, or protect criminal activity. Nevertheless, powerful plaintiffs can cause considerable financial pain to an indiscreet operator.

As an entrepreneur with interests in real estate, transportation, entertainment, and politics, the Chief Executive from the executive suite has inserted NDAs into every aspect of his adult life. Along with employees with access to his most secret business secrets, and girlfriends who know his most gossip-worthy private moments, he has used the threat of million-dollar lawsuits to discourage business associates, ex-wives, beauty pageant winners, and reality show contestants from spilling the beans about the boss.

Since he formed the Donald J Trump Presidential Exploratory Committee in 2015 the President has similarly required campaign workers, presidential transition staffers and, people who work in the White House, to not “disclose disseminate or publish” any information of a private, proprietary, or confidential nature “that Mr. Trump insists remain private,” reportedly including “all nonpublic information I learn of or gain access to in the course of my official duties in the service to the United States Government on White House staff.” By the definitions in the boilerplate agreement, the NDA would itself be considered non-disclosable. White House employees are typically not required to sign such agreements but, as they “serve at the pleasure of the president,” could risk instant dismissal for talking out of school. Critics of the Trump administration policy call the practice “unconstitutional and unenforceable” and say it deprives employees of First Amendment rights. Such a restriction on government employees could have a chilling effect on reporting wrongdoing, or otherwise create a conflict with congressional or judicial oversight.

Although the NDA White House staff members have signed is not publicly available, aides who have seen the form have described it to reporters as similar to the campaign NDA. Washington Post columnist Ruth Marcus, who first reported on the Trump White House NDAs, wrote that a draft version of the White House NDA, which she says she obtained, had language that “would expose violators to penalties of $10 million, payable to the federal government, for each and any unauthorized revelation of ‘confidential’ information.” Marcus wrote that she believed such language was struck in the final version, but it is further evidence of the private sector and campaign trail provenance of what eventually came to be in the White House.

The few Trump campaign NDA documents that have become public are very specifically crafted to shield records and communications of relatives in the Trump empire, specifically: “any member of Mr. Trump’s family, including, but not limited to, Mr. Trump’s spouse, each of Mr. Trump’s children and grandchildren and their respective spouses, including ...Donald J. Trump Jr., Eric F. Trump and Ivanka M. Trump, Tiffany Trump, and Barron Trump, and their respective spouses, children and grandchildren, if any, and Mr. Trump’s siblings” and includes “any entity, partnership, trust or organization that, in whole or in part, was created by or for the benefit of any Family Member or is controlled or owned by any Family Member.”

In contrast to the broad personal protection guaranteed to “the ‘Company,’” the rigid one-size-fits-all restrictions and obligations enforced on the signer are particularly deep and lasting (“This agreement will survive the expiration, cancellation or termination of any employment or independent contractor relationship that you may have with the Company”).

For example, a 2016 campaign staffer, Jessica Denson, signed a boilerplate NDA (below) when she joined Donald J. Trump for President, Inc. during its last three months. (By this time even online campaign volunteers were required to sign the boilerplate NDA.) Denson claimed after the election that she had suffered harassment and sexual discrimination by her direct supervisor at the Trump Tower call center. Representing herself, she sought $25 million in a lawsuit against the campaign corporation for damage to her reputation and career in a “hostile work environment.”

The Trump campaign demanded an arbitration ruling against Denson arguing her lawsuit itself was a breach of the NDA. Trump campaign’s lawyer demanded she pay $1.5 million for “attorney fees, interest, arbitration cost, and punitive/exemplary” relief. Denson is seeking to void the confidentiality agreement arguing in federal court that it was being used to “thwart or prohibit” her “assertion of legal rights.” Although the NDA gave “Trump Persons” sole discretion to submit any dispute “relating to this agreement” for binding arbitration in New York State, this month a state court ruled the campaign’s NDA did not shield the campaign from “any dispute arising out of plaintiff’s employment.”

Now comes former Apprentice contestant, campaign surrogate and White House aide, Omarosa Manigault Newman. Manigault Newman had signed previous NDAs for Mr. Trump in the course of their long professional association going back to the 2004 season of his reality show. But she somehow avoided signing another to cover her White House employment, which ended in her dismissal by White House Chief of Staff John Kelly in mid-December 2017 (she was allowed to stay on the White house payroll until January 20 so she could ”make the one year mark”).

Although the boilerplate NDAs prohibit the dissemination of “audio recording of any type,” Manigault Newman recorded Kelly personally firing her in the White House Situation Room, which is intended to be a secure facility. Shortly after that, she recorded a phone call with President Trump in which the President claimed he had not known about her dismissal beforehand. Manigault Newman released recordings last week of her Situation Room meeting with Kelly and her phone call with the President.

Meantime, before the sacked staffer was even out the door, President Trump’s daughter-in-law Lara Trump, who works for Trump-Pence 2020, phoned Manigault Newman offering a well-paid consulting position with the ongoing reelection campaign—provided she agree to sign a new NDA. Manigault Newman declined and, last Thursday, released a tape of Lara Trump making the offer.

Manigault Newman had already released a copy of the proposed NDA “Companion Agreement”along with the rejected “Consulting Agreement” offering her $15,000 a month from January 2018 through December for services of campaign “surrogate, speaking appearances, fundraising appearances” and “diversity outreach”—but forbidding her communication with any member of the news media “on behalf of… DJT, Vice President Pence, any Trump or Pence Family Member, any Trump or Pence Company, or any Trump or Pence Family Member Company without… express, written authorization.” The press contact restriction would last “during the term of [her] service” and “at all times thereafter.”

The boilerplate version NDA signed by Denson and others was modified slightly for Manigault Newman’s potential post-White House service. Previous available versions designated the authorizing entity the “Company,” while the newer version identifies the “Campaign” as the protected entity. (The agreement’s beneficiaries were also expanded beyond the “Trump Family” and “Trump Businesses” to include the “Pence Family” and “Pence Businesses.”)

In declining the consulting position, Manigault Newman instead chose to write her tell-all book, released in August along with numerous secretly recorded White House conversations. President Trump sees these acts as a violation of her previous campaign NDA, which “survive[s] the expiration, cancellation or termination of any employment… that you have with the company” and has filed for arbitration proceedings against his former protégé. Based on the court’s narrow interpretation of the scope of the Denson NDA, it is unclear whether the campaign confidentiality agreements apply to things witnessed during subsequent government service.

As the ousted aide battles to preserve her rights, a key boilerplate condition of the president’s standard NDA stands. When faced with a “legal obligation” to disclose confidential information (such as a government subpoena, for example), workers must:

1. Warn their boss by “provid[ing] the Campaign with written notice...as soon as you become aware of such obligation,”
2. Stall the authorities and “not make any disclosure notwithstanding such [legal] obligation until the Campaign or the appropriate Trump or Pence Person has had a reasonable opportunity to seek an appropriate protective order or similar relief,”
3. Help fight compliance by fully cooperating “with the Campaign and the appropriate Trump or Pence Person in any request for a protective order or similar relief;
4. In “the event no protective order is forthcoming” the underling must “exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded.”
5. Finally, if still compelled to disclose information, the worker must not cooperate with “any individual, company, or governmental entity other than the one … you are absolutely legally required to disclose” and “under all circumstances, [to]not furnish any greater portion of the Confidential Information than you are advised by counsel is absolutely legally required to be disclosed.”

In the private sector, NDAs have been abused by powerful individuals and organizations to silence criticism—but are still generally allowed, including in political campaigns. While NDAs regarding classified information have long been used in the government context and have been mostly accepted (though Reagan Administration attempts to penalize individuals for making public “classifiable” information was a bridge too far), there seems to be little pretense that President Trump’s NDAs in the White House are really about national security. Rather, they seem to be aimed at squelching potential public dissent and criticism of President Trump—something the First Amendment forbids the executive branch, which he now runs, from doing.