Deputy editorial page editor, The Washington Post,
Back in April 2016, when the notion of Donald Trump in the White House still seemed fanciful, The Post’s Robert Costa and Bob Woodward sat down with Trump, and Costa, at one point, raised the subject of the nondisclosure agreements for employees of which the candidate was so fond.
Costa: “One thing I always wondered, are you going to make employees of the federal government sign nondisclosure agreements?”
Trump: “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.”
Reader, it happened. In the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign nondisclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation. Some balked at first but, pressed by then-Chief of Staff Reince Priebus and the White House Counsel’s Office, ultimately complied, concluding that the agreements would likely not be enforceable in any event.
The nondisclosure agreements, said a person who signed the document, “were meant to be very similar to the ones that some of us signed during the campaign and during the transition. I remember the president saying, ‘Has everybody signed a confidentiality agreement like they did during the campaign or we had at Trump Tower?’ ”
At that time, in February or March of 2017, the source said, “There was lots of leaking, things that just weren’t true, and a lot of things that were true and should have remained confidential. The president’s point was that they [staff] would think twice about that if they were on the hook for some serious damages.”
Moreover, said the source, this confidentiality pledge would extend not only after an aide’s White House service but also beyond the Trump presidency. “It’s not meant to be constrained by the four years or eight years he’s president — or the four months or eight months somebody works there. It is meant to survive that.”
This is extraordinary. 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. If you have a leaker on your staff, the cure is firing, not suing.
“This is crazy,” said attorney Debra Katz, who has represented numerous government whistleblowers and negotiated nondisclosure agreements. “The idea of having some kind of economic penalty is an outrageous effort to limit and chill speech. Once again, this president believes employees owe him a personal duty of loyalty, when their duty of loyalty is to the institution.”
I haven’t been able to lay hands on the final agreement, but I do have a copy of a draft, and it is a doozy. It would expose violators to penalties of $10 million, payable to the federal government, for each and any unauthorized revelation of “confidential” information, defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including “communications . . . with members of the press” and “with employees of federal, state, and local governments.” The $10 million figure, I suspect, was watered down in the final version, because the people to whom I have spoken do not remember that jaw-dropping sum.
It would prohibit revelation of this confidential information in any form — including, get this, “the publication of works of fiction that contain any mention of the operations of the White House, federal agencies, foreign governments, or other entities interacting with the United States Government that is based on confidential information.”
As outlined in the document, this restriction would cover Trump aides not only during their White House service but also “at all times thereafter.”
The document: “I understand that the United States Government or, upon completion of the term(s) of Mr. Donald J. Trump, an authorized representative of Mr. Trump, may seek any remedy available to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.”
This is so ridiculously excessive, so laughably unconstitutional, that I doubted, when it first came my way, that anything like it was ever implemented — only to do some reporting and learn otherwise.
Ordinarily I would insert a response from the White House, but this is no ordinary White House: It dealt with my numerous requests for comment, to the press office and the counsel’s office, with complete silence.
The draft made its way to me after I wrote a column observing that Trump’s silence-buying and silence-compelling days were done. Now we know that he imported these bullying tactics into the White House. Which raises the obvious question: Why is he so consistently frantic to ensure that no one knows what goes on behind closed doors?