Prior Restraint

Are White House NDAs Legal? Experts Weigh In.

Donald Trump and Omarosa Manigault
Donald Trump and Omarosa Manigault (R) attend a church service, in Detroit, Michigan, U.S., September 3 2016. REUTERS/Carlo Allegri/File Photo


Opinion & Analysis

Former Trump aide and “The Apprentice” star Omarosa Manigault Newman’s public dispute with President Trump following her book release publicity tour raises questions about the legality of White House employees signing non-disclosure agreements and challenges the extent of government transparency in this administration. President Trump’s campaign organization filed for arbitration, claiming that Marigault-Newman breached an NDA that she signed when joining his campaign. Legal experts weigh in.


Public vs. Private

The question of whether an NDA is enforceable hinges on who was a contracting party on the NDA, President Trump or candidate Trump. The Constitution restricts government from curbing people’s right to free speech, but it does not prevent private actors from enacting private contracts. According to the Washington Post, many legal experts agree that the agreement should be treated as one between Omarosa and the federal government.

Washington Post
Enforceable by court?

Professor Jessica A. Levinson of Loyola Law School and former president of the Los Angeles Ethics Commission makes the case that NDAs signed by White House employees  violate the First Amendment and public policy. According to Levinson, non-disclosure agreements of this nature use “vague and threatening language in order to chill and silence speech” and that “protecting the president from bad press does not warrant such an erosion of the Constitution.” These agreements are unlikely enforceable in court she suggests.

What’s the legal precedent? 

National security attorney and media commentator Bradley P. Moss writes that the court precedent here is clear. With the exception of properly classified information, the president cannot impose prior restraint on former aides. “Former federal employees simply cannot be forced to contractually surrender their First Amendment right to discuss unclassified details of what they saw while serving in government,” he says.

‘Utterly rotten and un-American’

Appellate lawyer Chris Truax reminds readers that while working with the confines of government (as opposed to a private sector like a campaign organization) The First Amendment prevents a government official from enforcing an NDA agreement against government employees.

USA Today

Violation of Whistleblower Protection Act

If the Trump administration did not incorporate specific language outlined in the Whistleblower Protection Enhancement Act into its nondisclosure agreements, it would have broken the law, warns Kurt Bardella, former spokesman and senior advisor for the House Committee on Oversight and Government Reform.

“Simply put, it is illegal for anyone in the Trump administration to impose a nondisclosure agreement on a member of the federal government that in any way limits that person’s ability to communicate with Congress and expose waste, fraud, abuse and mismanagement,” Bardella writes.