Trump’s NDA’s

Contracts

[View here as a Twitter thread]

 

(thread) Nondisclosure agreements (NDA) are in the news: Cohen (Trump’s lawyer) had Stormy Daniel sign one, and now it’s reported that Trump had WH staff sign them. Okay, so what are they? Here’s a quick NDA primer and a list of problems with Trump’s White House NDAs

1/ An NDA is a kind of contract. A contract (“K”) is simply an agreement that can be enforced in court. For a K to be enforceable, there must be a benefit to both sides (consideration). The first problem: What is the benefit to the WH staff? If the benefit is the job . , ,

2 . . .it means Trump is exchanging WH jobs for someone’s silence. Bigger problem is that it’s a restriction on speech put in place by the government—a First Amendment violation.

3/ Another problem is that it violates whisteblower statutes (a person cannot be penalized for reporting illegal activity in the work place) The draft reported forbids the staff to write anything about WH tenure, even fictionalize accounts, which means the NDA attempts to

4/ . . own and control the staff member’s intellectual property. The draft contains an enormous ($$ millions) in penalty, which is also illegal. This is called a liquidated damage clause, which is illegal if the attempt is to penalize breach.

5 / Another possible problem: NDAs are not enforceable to keep someone silent about criminal activity (and there have been multiple reports that Trump is talking to witnesses about their statement.

6/ Also contracts are not enforceable if against public interest. No doubt there are others. All you need is one (i.e. lack of consideration) for the K to fall apart and not be enforceable.

7/ Someone asked if there is an arbitration clause. The reporter didn’t say. I’m pretty sure POTUS cannot force people into arbitration.Federal employment procedures would no doubt control disputes.

The ACLU just weighed in:   asked about the lawyers who wrote the NDA.

Scroll to Top