Over the weekend, the spat between President Trump and former White House staffer and Apprentice contestant Omarosa Managault broke out into the open, as Omarosa prepared for her book launch by appearing on national television and demonstrating that she had indeed taped inside the White House. President Trump immediately fired back with a series of tweets slamming Omarosa for being a rotten employee; he then added that she was bound by non-disclosure.
Now, would such a non-disclosure agreement be binding? It’s highly doubtful. While Kellyanne Conway says that they “have confidentiality agreements in the West Wing,” it’s doubtful that any judge would uphold such agreements as pertaining to Trump as an individual. The Washington Post reported earlier this year that the Trump administration had placed $10 million penalties in confidentiality agreements pertaining to “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.”
The problem is that the agreements aren’t with the government – they’re supposedly with Trump himself. You can’t govern publicly funded speech interactions with private agreements this way, in all likelihood; the enforcement mechanism would have to be governmental, and that would probably violate the First Amendment. Leaking classified material is already illegal, and President Trump can fire leakers of non-classified material, but NDAs between Trump himself and people like Omarosa would face serious difficulties. In McGehee v. Casey (DC Circuit, 1983), for example, the court said “The government has no legitimate interest in censoring unclassified materials.”
So, we’ll have to see the scope of the Trump NDA’s. But if what we’ve read reflects those NDA’s in any way, it’s highly unlikely this case ever sees court. And if it does, Omarosa will have the power of discovery to compel the release of information concerning the formation of such NDA’s, which could be damaging to Trump on his own.