When people are chosen by a man
Ruth Marcus on Trump’s efforts to control what people say about him:
[Robert] Costa [in April 2016]: “One thing I always wondered, are you going to make employees of the federal government sign nondisclosure agreements?”
Trump: “I think they should. . . . And I don’t know, there could be some kind of a law that you can’t do this. But when people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that. I mean, I’ll be honest. And people would say, oh, that’s terrible, you’re taking away his right to free speech. Well, he’s going in.”
Comes with the job though. It’s a public service job.
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 tried to say no but Priebus leaned on them so they gave in, figuring it was unconstitutional anyway.
Moreover, said the source, this confidentiality pledge would extend not only after an aide’s White House service but also beyond the Trump presidency. “It’s not meant to be constrained by the four years or eight years he’s president — or the four months or eight months somebody works there. It is meant to survive that.”
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.
But also very very Trump-like. He has a hugely inflated opinion of himself and a correspondingly low opinion of everyone else. He thinks he’s entitled to own people for life.
“This is crazy,” said attorney Debra Katz, who has represented numerous government whistleblowers and negotiated nondisclosure agreements. “The idea of having some kind of economic penalty is an outrageous effort to limit and chill speech. Once again, this president believes employees owe him a personal duty of loyalty, when their duty of loyalty is to the institution.”
He thinks everyone in the world owes him loyalty, or at least deference. He thinks no one has any right to point out what an empty sack of wind he is.
In the draft agreement, which is all Marcus has seen, they were demanding $10 million for
each and any unauthorized revelation of “confidential” information, defined 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,” including “communications . . . with members of the press” and “with employees of federal, state, and local governments.”
$10 million plus a gallon of ice cream.
As outlined in the document, this restriction would cover Trump aides not only during their White House service but also “at all times thereafter.”
The document: “I understand that the United States Government or, upon completion of the term(s) of Mr. Donald J. Trump, an authorized representative of Mr. Trump, may seek any remedy available to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.”
Also, if you slip up, they’ll kill your children.
That part about employees of federal, state, and local governments; does that imply that Trump thinks he can ban staff / ex-staff for cooperating with law enforcement agencies?
‘…ban from…’
Hmm, good question. It seems to depend on what “unauthorized” means, which in turn poses the question whether he thinks he can protect everything in perpetuity. If a state prosecutor interviews a former Trump employee does fTe have to get authorization before talking?
As Ruth Marcus says, it’s ludicrous.
I would _think_ the US FOIA would pretty much override anything Trump the Incompetent imagines he can sign civil servants to. Says right in the law the executive branch is subject.
I agree the Trump White House NDA is bad, but we should judge it in the context of valid NDAs and how they work.
For example, a Google search on White House NDA finds the Obama Administration OMB posted this as one indication that NDAs exist, and their interactions with other laws are complicated. And I’ve signed NDAs with the government that last a lifetime (e.g. to protect classified information after leaving employment), so a lifetime obligation is not wrong in itself.
As I see it, the Trump White House NDA is wrong for these things:
• The penalty is monetary (instead of criminal) because the NDA “goes native” (making up its own rules). The White House did not coordinate with other branches of government to define a crime (e.g. leaking classified information is criminal, but embarrassing the President is not).
• The offense in the Trump NDA is overly broad (e.g. if the White House has a cafeteria, and you tell someone how to walk there, the Trump Administration can say you owe $10m).
• There’s no definition of due process (e.g. if they fine you $10m for telling someone how to walk to the cafeteria, who can you appeal to?).
Of course, the approach is to intimidate people first (which costs nothing), and see how this plays out later.
So, Dave, your example of the Obama era NDA is covered by this quote from the story above…
“White House staffers have various confidentiality obligations — maintaining the secrecy of classified information or attorney-client privilege, for instance”
But nothing about the Trump one is and it’s bad for all the reasons you list and more. Other than the non-reason of protecting Trump’s incredibly fragile ego there is nothing good (or possibly even legal) about his NDA. So what was your point?
I may be wrong, Rob, but I read it to mean that when compared to legitimate NDAs given to a president’s staff, Trump’s NDA isn’t just wrong, it is comically wrong.
Rob, in the Post article — in the text, and in the title — the article emphasized the lifetime commitment of the NDA, as if a lifetime commitment is “extraordinary” (as the author put it). The Post was wrong and misleading on that point.
Dave, maybe I’m not seeing what you are. I would expect NDA’s around security and whatever other documents carry confidential,or secret ratings to apply for as long as that material remains classified. That doesn’t seem to be what these NDA’s achieve or are aimed at. I sign NDA’s for both commercial and government contracts. Nothing classified, essentially all around IP, timing of release of information and the like. Nothing is forever. There are always limits, expirys or other terminating clauses. As AoS says, it’s just a (tragic) comedy.
Rob, I can agree with you now.
I recently signed a debriefing form for Critical Nuclear Weapon Design Information (CNWDI). The form says, “CNWDI is never downgraded or declassified…”, and to be more precise, I looked up the current rules for declassification in Executive Order 13526. It says in Sec. 1.5(d), “No information may remain classified indefinitely,” but some information has been “marked for an indefinite duration of classification under predecessor orders.” The EO goes on to describe declassification, with exceptions for “information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction”.
I can stop with the details and agree with the Post that an NDA of indefinite duration is “extraordinary” (e.g. CNWIDI is a special case).
I also agree with your reasoning in general, that if an NDA has a legitimate purpose, then the legitimate purpose should limit the duration.
Sweet