The newest volley in the back and forth war between President Trump and former-reality-star-cum-former-White-House-staffer Omarosa Manigault Newman came today, with Trump filing an arbitration suit against Manigault Newman for what he alleges is a breach of a “non-disclosure agreement”. Manigault Newman, who served as “liason to the African American community” for the Trump administration until her firing last December, denies that any such agreement covered her time in the White House. Though the agreement has not yet been made public, many experts agree that the NDA is likely invalid as to Manigault Newman’s time in the White House.
That the President required his staffers to sign NDAs was first revealed back in March, Though it has been conceded on both sides that the Manigault Newman NDA dates back to the 2016 campaign, the Trump camp asserted via Kellyanne Conway that all employees of the West Wing have signed similar agreements. The Trump camp alleges that Manigault Newman’s new tell-all book and her statements to the media regarding her time in the White House is in breach of the confidentiality agreement, for which she “owes millions”.
A few things to note: White House staffers are not employed by Donald J. Trump; they are employed by the United States of America. Thus, any attempt to enforce the muzzling of federal employees would necessarily be by the federal government, not the president or his campaign. Any attempt by the government to limit speech would likely invoke that whole First Amendment thing. True, there are situations involving classified information for which the government may restrict speech, but “I saw the president eat paper and he uses the “N word” is unlikely to qualify as matters of national security.
It’s also true that government entities may have a legitimate interest in the regulation of their employees’ speech, but, as national security lawyer Bradley P. Moss of the Lawfare Blog explains here, federal courts have held that non-classified information revealed by former government employees is not subject to restriction. There exists a “pre-publication review” process for former employees who wish to publish memoirs of their time in government, which gives the government the ability to identify and restrict the dissemination of any classified-but only classified-information. However, this process is for security clearance holders, which does not include Manigault Newman, who had no security clearance at all.
Trump is often criticized for treating the presidency as another of his business ventures, and the use of NDAs is classic Trump. But while NDAs might be useful for ex-wives, former mistresses, and disgruntled beauty pageant contestants, Trump may find that things are different when his staff works for the people of the nation, not him.