You get an NDA! And you get an NDA! Everybody gets an NDA!
Listening to the chatter Tuesday evening, you’d think that the most pressing matter of national importance was whether President Donald Trump required White House officials to sign non-disclosure agreements or not. The question has come up several times in the past, but has taken on new “importance” since former Apprentice bad-guy and later Trump appointee Omarosa Manigault-Newman published a tell-all book about her short time in the West Wing.
There’s lots of conflicting stories and theories flying about, and no one seems to be listening to what anyone is actually saying. In the a new twist on the old political parlor game of answering the question you wish the reporter had asked, people seem to be reacting to what they wish had been said instead of what was actually said.
We’ve known about Non-disclosure Agreements for a while
Back in March, Washington Post columnist Ruth Marcus claimed to have obtained a draft copy of a presidential staff NDA, which bound the signer from ever revealing their private discussions from their time in the White House. The draft allegedly included a potential $10 million fine!
The New York Times later confirmed the existence of NDAs for senior staff, although it reported that White House Counsel Don McGahn “privately told senior aides that it was mainly meant to placate an agitated president, who was convinced that the people around him had to be pressured into keeping his secrets.”
So it certainly seems like at least some senior staffers had to sign them at some point. With the West Wing leaking like a rusty pipe, it’s no wonder the president wanted these agreements in place. But to my knowledge, no one outside the White House has ever seen one of them, so we don’t know exactly what’s in them.
Tellingly, it is the Trump campaign, not the administration, who is suing Manigault-Newman for violating an NDA. That ought to tell you something about how enforceable people think these agreements actually are.
But the deeper question is “How common are they?”
Sanders defends NDas (kind of) at latest Press Conference
If nothing else, after her time in the White House, press secretary Sarah Sanders will be fully qualified to work at an IT help desk, since she gives answers that are technically correct but irrelevant to the problem at hand. (Sorry, I know I keep using that joke, but it’s just so relevant).
Sanders told reporters at Tuesday’s press conference that “despite contrary opinion, [government employees signing NDAs is] actually very normal. And every administration prior to the Trump administration has had NDAs, particularly specific for anyone that had a security clearance.” The last part saved her from Glenn Kessler’s dreaded “Four Pinocchio” fact-checker rating (one would assume, anyway).
Anyone who has held a security clearance knows that part the deal is signing a Standard Form 312, “Classified Information Nondisclosure Agreement.” The signer acknowledges that, in the words of my favorite coffee mug, “What happens in the Pentagon, stays secured in the Pentagon.”
So yes, everyone who has worked in the White House has signed an NDA, since almost everyone has a security clearance. I really do wish, though, that people would make up their minds as to whether nearly everything said in the West Wing is classified (which they were arguing when Jared Kushner’s security clearance was an issue), or the scope of the SF 312 is narrow, even for a White House employee. Because it can’t be both.
Questions on NDA legality and constitutionality
Many First Amendment lawyers have said that the type of NDA the administration is alleged to have imposed is unenforceable because it is an unconstitutional restriction on an individual’s right to free speech. Others have argued that the administration simply cannot do this.
I agree with the former, but not the latter. These agreements may well be unconstitutional, but until a court rules otherwise, they are still legal.
For the average civil servant, an NDA that prevents disclosure of an agency’s activities is illegal. That type of “prohibited personnel practice” is spelled out in section 2302 of Title 5 of the United States Code. That statute prohibits requiring an NDA of federal employees.
But employees of the Executive Office of he President are most decidedly not your average, run-of-the-mill, garden-variety civil servant. That is why the law specifically exempts those federal employees who are “excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character,” or those so designated by the president. Remember the “Plum Book?” Yeah. This exception is for all those people.
The courts may well find that NDAs for senior staff are unconstitutional. Until then, they’re perfectly legal. In fact, a Pentagon source told me Tuesday that the people who work on preparing the Program Objective Memorandum for the Army’s acquisition programs are all required to sign NDAs. The information is not classified, but there are many, many defense contractors who would love to know what the Army’s plans for their budget items are well in advance. The people responsible for crunching the numbers are the ones we most need to keep quiet for a few months..
So why not all West Wing employees? Beats me.
