Are the Trump White House Nondisclosure Agreements Enforceable?

A few weeks after he was elected president of the United States, Donald Trump decided he would require his White House staff to sign non-disclosure agreements (aka NDAs) — just as Trump Organization employees and Trump wives were required to. Although Trump was advised that NDAs for federal government employees couldn’t be enforced, White House counsel Don McGahn drafted a watered-down version. Rumors are that the NDAs would cover Trump aides not only during their White House service but also “at all times thereafter.”

White House counsel Don McGahn Image Source: seattletimes.com

While White House staffers have various confidentiality obligations — maintaining the secrecy of classified information or attorney-client privilege, no past President has asked White House staffers to sign NDAs. A former Obama administration official said nondisclosure agreements were not used under President Barack Obama.

Not all contracts are enforceable, even when they are knowingly and freely entered into by the parties. For example, you cannot contract to become someone’s slave. A contract to hire a hitman will never be enforced by a court.

Image Source: lawfareblog.com

Similarly, no nondisclosure agreement can prevent you from talking to the police because that violates public policy. The White House NDAs are probably unenforceable because (1) White House staff work for the federal government, not the president personally; so (2) White House staffers are protected by the First Amendment. The courts have long recognized that apart from classified information, government employees have a First Amendment right to speak.

There may be enforceable non-disclosure agreements in which executive-branch agencies bar whistleblowing employees from revealing the details of their settlement negotiations with the government, but the Trump White House NDAs are far broader.

In short, White House staff work for the federal government, not for the President, and cannot be broadly gagged with private NDAs.

What do you think? Is there any harm in signing an agreement that isn’t enforceable? Should the President ask his staff to keep secrets?

3 comments on “Are the Trump White House Nondisclosure Agreements Enforceable?

  1. Avatar for Mary Mock mmock
  2. Avatar for Mary Mock mmock
    Mark Purschwitz on

    The NY Times article today (5-6-20) about Kushner’s use of inexperienced volunteers to locate urgently-needed PPE says the volunteers had to sign NDAs. Use of NDAs within the federal government was intended to protect against release of classified national security information.The broad use of NDAs in the Trump administration is greatly concerning to me, as it facilitates hiding incompetence, cronyism, and fraud. It took a brave volunteer to speak to the Times for this article. I wish more was written about this misuse of power, and why these NDAs should be challenged.

    Reply
  3. Avatar for Mary Mock mmock
    JK on

    I think these Trump sycophants (Ted Cruz, Josh Hawley, et al) will no longer be of any use to the GOP in 2021 once Trump employees for the past 4 years will TELL ALL.

    I hope those self-serving disugsting filth-driven sycophants get expelled (Article 1 Section 5 ). They just might earn a 2/3rds vote at that point.

    Or they can start their own party – call themselves “Trump’s Useful Idiot Party”.

    Sucks to be them. How does Josh Hawley have a law license!?

    Reply

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