Once again, Trump is threatening to sue a former White House staff member for violating a non-disclosure agreement (NDA):
It’s not enforceable, but Trump’s NDAs do tell us a lot about Trump.
Last year, Kellyanne Conway confirmed that “everyone” in the West Wing signs NDAs.
Omarosa made public the agreement she was asked to sign, so we what know what a Trump NDA looks like. Omarosa’s agreement contains a non-disparagement clause, requiring her to promise that during the term of service “and at all times thereafter” she won’t demean or disparage publicly, in any manner, Trump, Pence, or any members of their families.
So, the contract forbids a citizen, for the rest of her life, from criticizing the president, the vice president, and their families.
This obviously poses a First Amendment problem.
Trump—and the entire Trump-FOX-GOP—are all confused about the First Amendment.
The First Amendment isn’t about the freedom to utter hate speech or have a national platform for bogus theories.
Under the First Amendment, the government can’t silence a citizen without a compelling reason.
It requires government action.
The White House is a government entity.
Typically Non-Disclosure Agreements are used to guard trade secrets.Trump uses his to guard his personal secrets and to prevent people from saying negative things about him.
The next problem with Trump’s NDAs is a feature in contract law: There’s no penalty for breach. There are exceptions (punitive damages) but the general rule is that if you breach, you pay the actual damage caused by the breach.
Okay, so, what are the actual damages to Trump if someone tells the truth about him?
The statement: “I, the President of the U.S., was damaged when someone told the truth about me,” has obvious problems.
Last year, the Washington Postreported that White House NDAs included a $10 million penalty for breach.
This is called a liquidated damage clause,and it’s legal if actual damages are difficult to calculate, and if the amount demanded is reasonable. Any monetary damages for telling the truth about the president is laughably unreasonable.
The NDAs cover truthful statements. You don’t need an NDA to protect yourself against lies. Libel and defamation laws already protect against lies.
Trump is thus saying that if someone tells the truth about him, the damage is about $10 million.
Any monetary damages for telling the truth about the president is laughably unreasonable.
The next problem: The White House is forcing employees to sign illegal contracts.
According to the New York Times, when White House lawyer McGahn drew up the White House NDAs, he warned Trump that they probably couldn’t be enforced. McGahn also told aides the NDAs were “mainly to placate the president.”
Unenforceable contracts with liquidated damages serve a purpose: Intimidate people into silence.
Punitive liquidated damages are the ultimate bullying tactic: “If you talk badly about me, I’ll send my lawyers after you, and they’ll take everything you own.”
Yes, this has a lot in common with mob lawyers.
Trump employs lawyers to do his bidding, which includes ignoring the law if it stands in his way.
Recall that the Steele Dossier alleged that Trump typically silenced witnesses against him:
Thus Trump’s history of silencing people creates a pattern and practice that helps substantiate the claims in the Steele dossier.
Q: Why the need for so much secrecy?
A: Trump inhabits a made-up world of his own creation.
In the story he has invented, he’s a smart and successful businessman and whiz deal maker. Maintaining the fiction requires hiding the truth.
Hence, his love of NDAs.
