Kellyanne Conway, new campaign manager for Republican presidential candidate Donald Trump, speaks to reporters in the lobby of Trump Tower in New York, Aug. 17, 2016.
Photo by Gerald Herbert/AP

The White House’s non-disclosure agreements aren’t normal

Earlier this year, a reporter asked White House Press Secretary 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.”

Yesterday, however, on ABC News’ “This Week,” Kellyanne Conway went a little further in confirming what Sanders would not. This was the exchange between the White House counselor and ABC’s Jonathan Karl, after Conway said, “We’ve all signed them in the West Wing.”

KARL: You’ve signed a non-disclosure –

CONWAY: We have confidentiality agreements in the West Wing, absolutely we do. And why wouldn’t we?

Soon after, in the same interview, Conway added, “Everybody signs an NDA.”

The idea, evidently, was to treat this dynamic as somehow routine and uninteresting, but the truth is more complicated.

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 earlier this 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.”

Circling back to our previous coverage, there are a few angles to this to keep in mind.

First, are these NDAs 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 in March, “Public employees can’t be gagged by private agreements. These so-called NDAs are unconstitutional and unenforceable.” Whether anyone at the White House will test this assessment is unclear.

Second, what’s with Team Trump and its contempt for transparency? We’re not just talking about tax returns and visitor logs anymore. The scope of the secrecy surrounding this presidency is stunning.

And third, Marcus concluded with a key question about how Trump oversees his operation: “Why is he so consistently frantic to ensure that no one knows what goes on behind closed doors?” Under the circumstances, it’s hard not to wonder what it is, exactly, that the president is worried about being exposed.