About a year ago, when White House press briefings still occasionally occurred, a reporter asked Sarah Huckabee Sanders whether officials on Donald Trump’s team are asked to sign non-disclosure agreements. “There’s an ethics agreement,” she replied. “Beyond that, I can’t get into any additional details.”
As regular readers may recall, it was several months later when Kellyanne Conway seemed to confirm what Sanders would not. “We’ve all signed them in the West Wing,” Conway told ABC News. We have confidentiality agreements in the West Wing, absolutely we do. And why wouldn’t we? … Everybody signs an NDA.”
That may not have been an exaggeration. The Daily Beast reports today that when White House interns got to work last month, the orientation process included a specific kind of “ethics training.”
Soon enough, according to three sources familiar with the process, a representative from the White House counsel’s office materialized to greet the newcomers, and to demand what the Trump White House has required of so many other interns and senior officials.
Upon orientation, the interns signed their very own non-disclosure agreements (NDAs), with the envoy of the counsel’s office warning them that a breach of the NDA – blabbing to the media, for instance – could result in legal, and thus financial, consequences for them. Interns were also told that they would not receive their own copies, these sources said.
In case this isn’t obvious, the idea of having White House interns sign NDAs is kind of bizarre. I can say from my personal experience – I interned in the White House in 1995 – that such a practice would’ve seemed ridiculous in the not-too-distant past.
But the oddity of the practice is only part of the problem.
Circling back to our earlier coverage, as far back as April 2016, then-candidate Donald Trump expressed his belief that White House officials should sign NDAs. Evidently, he wasn’t kidding.
The Washington Post’s Ruth Marcus reported last year that the president, after requiring his campaign staff and transition staff to sign confidentiality agreements, imposed the same requirement on his White House team.
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.
Marcus spoke to attorney Debra Katz, who has represented numerous government whistleblowers and negotiated nondisclosure agreements, who described Trump’s NDAs as “crazy.”
There’s no shortage of questions about the policy, ranging from the president’s apparent contempt for transparency to his apparent fear that the public will learn what goes on at his White House.
But there’s an even more important question to keep in mind: are these NDAs even enforceable?
The ACLU believes the answer is no. Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said in a statement last year, “Public employees can’t be gagged by private agreements. These so-called NDAs are unconstitutional and unenforceable.”
We may soon find out if the courts agree. The Washington Post reported overnight that a former Trump campaign official “filed a class-action claim on Wednesday seeking to nullify all nondisclosure agreements that the campaign had forced its staffers to sign, calling the documents ‘unenforceable’ and ‘unconscionable.’”