Secrets and NDAs
August 14, 2018

In pushing back against damaging new claims by former White House adviser Omarosa Manigault Newman, the Trump administration confirmed reports that President Trump had White House staffers sign nondisclosure agreement (NDAs). On Sunday, White House counselor Kellyanne Conway told ABC News that NDAs are "typical" in offices and "we've all signed them in the West Wing," and Trump tweeted Monday: "Wacky Omarosa already has a fully signed Non-Disclosure Agreement!" This raises a lot of questions. Here are five:

1. What does the White House NDA say? Several Trump aides told The Washington Post it prohibits sharing any confidential or nonpublic information outside of the White House at any time. It specifically "prohibited top aides from disclosing confidential information in any form including books, without the express permission of the president," a former administration official tells Politico. And violators "would have to forfeit to the U.S. government any royalties, advances, or book earnings."

2. Are these NDAs enforceable? Most legal experts say no, because muzzling government employees would violate the First Amendment. Also, public employees "are supposed to serve the public and the institution of the president, not any one particular person," Politico explains.

3. Did Manigault Newman sign one? She says she refused. She did, however, apparently sign a stricter NDA to work on the Trump campaign and, according to The Daily Mail, the Trump 2020 campaign plans to sue her for breach of that agreement.

4. So which White House employees did? Conway suggests she was one of the "dozens of seniors aides" who signed the NDA, some after being told it was unenforceable, The Washington Post reports. Still, any officials who did sign away the right to say anything negative about Trump for years or forever "probably shouldn't be given a platform — on, say, a cable news channel — to opine about Trump," notes The Weekly Standard's Jonathan Last, "because you're not allowed to say what you really think."

5. If the NDA is toothless, does it matter? Yes, Last argues, because "the purpose of an NDA isn't to be enforced — it's to obstruct the revelation of information by making such revelations costly." Peter Weber

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