Tuesday, August 14, 2018

Nondisclosure Agreements (NDAs) & Public Officials

President Trump appeared to acknowledge on Monday something his aides have declined to confirm for months: that his White House had aides sign nondisclosure agreements. The president made the statement in a post on Twitter about Omarosa Manigault Newman, a former contestant onThe Apprenticewho became an assistant to the president, and whose new book makes unflattering claims about Mr. Trump and his family.

Wacky Omarosa already has a fully signed Non-Disclosure Agreement!’ Mr. Trump tweeted, using the type of moniker he often deploys against people who say disparaging things about him. For months, officials in the West Wing have refused to confirm reports by The New York Times and other news outlets that aides were ordered to sign nondisclosure agreements, which legal experts say are essentially unenforceable for government employees.” — Maggie Haberman in The New York Times, August 13, 2018

*           *           *

“A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA) or secrecy agreement (SA), is a legal contract between at least two [private] parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects non-public business information.”

Apart from those in the corporate world, the most common forms of these NDAs involve “doctor–patient confidentiality (physician–patient privilege), attorney–client privilege, priest–penitent privilege, and bank–client confidentiality agreements.”

Government officials and political office holders are bound by oaths, moral obligations and legal and constitutional duties,* not private contracts; they are not and should not be parties to NDAs, for the public realm is distinguished in fundamental and thus significant ways from the “private” realm and corporate sector, even if these two realms necessarily overlap and affect each other (as in the relations between civil society and the State). Justice in the case of officials and office holders involves justice as a personal and professional obligation as well as a constitutional imperative. Legal officials and political office holders at local, state, and national levels routinely make decisions, policies and act in their official capacity on matters that are basic to our individual and collective security, welfare, and well-being as these come to be historically understood and constitutionally defined in a democratic polity. The power they hold and wield is in the nature of a (revocable) trust, hence it is a question of trusteeship. The moral obligations to which they are subject and the political power with which they are entrusted, cannot be legally or morally confined within, nor should it be confuse with, the constraints of private party contract formation.

By definition, public officials are not private employees, and Trump’s attempt to bring nondisclosure agreements into the White House effectively effaces this distinction, although it is consistent with the patently absurd belief captured in the Right’s mind-numbing ideological slogan—and Trump’s promise—to “run the government like a business.” I suppose this should not be surprising insofar as we live in a capitalist democracy” whose governing ethos and motivational mindset is increasingly more capitalist than it is liberal or democratic, its “constitutional goods” overwhelmed by the literal and figurative “goods” of consumption. Even one of our country’s foremost (or at least better known) legal theorists, Cass Sunstein, has succumbed to the “production” side of this positivist and capitalist calculus, arguing that the “bottom line” of public policy should be in fact be the bottom line: cost-benefit calculations (‘quantitative cost-benefit analysis’). 

Writing for the Washington Post, Ruth Marcus speaks to the nondisclosure agreements senior staff have signed in the Trump White House:

“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.’ [….] 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.’”

Marcus’s reaction, and the attorney she quotes in support of her argument, is one I share and will serve as our conclusion:

“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 [and the constitution!].’” 

* Please see, by way of a basic introduction and overview that is nonetheless incomplete, Steve Sheppard’s I Do Solemnly Swear: The Moral Obligations of Legal Officials (Cambridge University Press, 2009).

Update: Many thanks to Marcia McCormick who let me know of this interview at NPR
’s 1A with Neal Katyal.

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