Jurisprudence

Trump’s Nondisclosure Agreements for Federal Employees Are Authoritarian and Unenforceable

Donald Trump
Donald Trump speaks with the media before boarding Marine One at the White House in Washington on Tuesday. Leah Millis/Reuters

When we think about all the ways the Trump presidency has exploited the lines between the historically and constitutionally circumscribed role of the president and his businesses, it’s conflict-of-interest concerns that are most often implicated. There are the questions surrounding the Trump family businesses overseas, issues related to his continuous apparent violation of the foreign emoluments clause of the Constitution, the recent and incredibly troubling revelations around Jared Kushner’s family business interests in Qatar, and countless conflicts that we don’t even know about.

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But in a column on Sunday, Ruth Marcus of the Washington Post pointed to perhaps the most pernicious conflation of business and government yet by the president. One year ago, Trump reportedly began a practice of requiring, as he had done in his campaign, some federal employees—such as senior White House staff—to sign private nondisclosure agreements. Violations of those agreements would supposedly result in “serious damages” and remain enforceable beyond Trump’s presidency. Once again, Trump’s norm-breaking provides us with yet another teachable civics moment, if for no other reason than to lament yet another of Trump’s autocratic innovations. While these agreements are almost certainly unenforceable—as Marcus notes, federal employees, unlike their private-sector equivalents, have First Amendment rights—they can still potentially do significant damage to the republic.

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To the extent the president’s understanding of the law means anything here, he was interviewed by Bob Woodward and Robert Costa in April 2016 and asked by Costa, quite directly, whether he was “going to make employees of the federal government sign nondisclosure agreements.” Trump said:

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,” I would say … I do have nondisclosure deals. That’s why you don’t read that.

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Parsing Trump’s language through the contradictions and ignorance is never easy, but at the very least he appears to grasp that there’s a free speech component to this issue. What he doesn’t appear to appreciate in the slightest is that it’s not for sale to him. Here’s more from that exchange with Costa and Woodward:

Trump: I don’t like people that take your money and then say bad things about you. OK, you know, they take your …

Costa: But it’s so different when you’re in the federal government.

Trump: It’s different, I agree. It’s different.

Costa: But you are recommending nondisclosure …

Trump: And I tell you this, I will have to think about it. I will have to think about it. That’s a different thing, that I’m running a private company and I’m paying people lots of money, and then they go out and …

Woodward: The taxpayers are paying the other people in the federal government.

Trump: Sure, sure. They don’t do a great job, and then you fire them, and they end up writing a book about you. So it’s different. But I will say that in the federal government it’s a different thing. So it’s something I would think about. But you know, I do right now—I have thousands and thousands of employees, many thousands, and every one of them has an agreement, has a … I call it a confidentiality …   

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Costa and Woodward are gently attempting to lead Trump to a democratic axiom most Americans take for granted—the taxpayers pay White House officials, not Trump. White House officials cannot, in their official capacity, contractually and legally pledge allegiance to anyone other than the taxpayers. Trump placates his interviewers with a dismissive “sure, sure” and immediately betrays his autocratic understanding of the relationship between executive branch employees and their chief executive by expressing his fear that an employee may “end up writing a book about you.” The speech of federal employees is already constrained, in some cases for obvious enough reasons—some information is classified, some information raises national security concerns, and so on. It is not constrained, however, by the president’s desire for personal privacy.

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The essence of the conflicts-of-interest problems posed by the Trump presidency is that we citizens would like to know in advance whose interests are being represented when the president is executing laws, advocating policy, negotiating with foreign nations, or alternately pumping/trashing particular companies on Twitter. Is it us? Or is it the Trump Organization? The idea behind conflicts-of-interest laws is to obviate the need to confront the question at all, because discerning anyone’s intent is always difficult, much less discerning the intent of a president whose words change as easily as the weather.

The Marcus story affords a telling example of where the president comes down on this citizenry versus business quandary. By having his staff sign nondisclosure agreements with civil penalties—presumably via liquidated damages clauses—that survive his presidency, Trump is effectively rendering his staff’s oaths to “support and defend the Constitution” subordinate to a separately negotiated oath to Donald Trump in his personal capacity. His intent couldn’t be more clear: Federal employees are really Donald Trump employees.

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These agreements are, in all likelihood, legally deficient in a fairly elementary way. Absent consideration (i.e., the thing received by contracting parties in exchange for their agreement to perform/remain silent/forego rights), any nondisclosure agreement would in all likelihood be deemed invalid. Any nondisclosure agreement entered into by a federal employee owing civil damages to any person, let alone the president, also begs the appalling question of what consideration those employees could possibly have received separate and apart from their salaries, which are statutorily prescribed and reported annually to Congress. If they did receive some benefit apart from their salaries—or if the job, and thus the salary, itself was contingent upon signing the agreement—it would be worth contemplating what laws such an arrangement might violate.

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The far stronger likelihood is that consideration isn’t present here, rendering these alleged agreements little more than a bullying, speech-chilling, calculated bluff. Marcus cites a draft agreement that makes penalties payable to the federal government (as opposed to Trump personally), but it’s difficult to imagine how that bit of drafting slipperiness would matter, except to attempt to obfuscate that Trump is the real party to the agreement and federal employees are obligees. According to Marcus, some who were reluctant to sign ultimately did so because they figured they were unenforceable anyway. Barring some dark authoritarian turn in our other branches of government, these employees were absolutely correct about this last part.

These alleged nondisclosure agreements represent an attempt to purchase the free speech rights of federal employees for the sake of Trump’s personal protection, paid with only an empty, but perhaps effective, threat. To say such a threat cheapens the presidency grossly understates the constitutional repugnancy of these agreements. This effort reveals the president’s view of himself as an autocratic leader and of his place within the American system as being above it. It further demonstrates his blithering ignorance and disdain for even the simplest and purest of American concepts like free speech and public service.

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