Trump Files Arbitration Suit Over Breach of NDA


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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10 Responses

  1. Avatar Burt Likko says:

    First of all, Ms. Manigault Newman has First Amendment rights. She gets to speak about matters of public interest, and it’s not for the government to try and stop her. The exception is, as the OP notes, if what she wants to talk about is classified and she never held a security clearance.

    Secondly, the public has a right to know what its public officials are doing, how they are going about discharging their public duties. That’s why we have a Freedom of Information Act.

    Thirdly, to the extent that Ms. Manigault Newman is not exactly the most reliable narrator, we must trust the public to sort out truth from fiction.

    Fourth, the fact that this is even a thing at all is another indicator, as if more were necessary, that this White House is a fish rotten to its core. And you know where a fish starts rotting from? The head.Report

    • If the arbitrator finds that she did violate the NDA, what next? Presumably she sues, but AFAIU courts are loath to override the results of binding arbitration.Report

      • Avatar Michael Cain says:

        Could an arbitrator in this situation hold that the NDA is not binding because of court decisions on free speech? I’ve signed NDAs in the past that included terms courts had previously found to be unenforceable. I assumed they were present for the same reason some states keep statutes on the books even though they are currently unenforceable: sometimes the courts change their minds.Report

        • Avatar Burt Likko says:

          An arbitrator can hold damn near whatever she wants.

          But I don’t think it’ll ever get to an arbitrator. Someone has to demand arbitration. Who is the part claiming a right to demand Ms. Maginault Newman’s silence? That would be the U.S. government, not Trump Enterprises.

          The U.S. government tends to do things in court, not in private arbitration. And for damn good reason: it is required to operate out in public where the public can see what it’s doing. I daresay even if President Trump directed the Attorney General to prosecute a civil action to enforce the NDA by way of private arbitration, every page of that arbitration would be subject to a FOIA action and a journalist seeking to attend and record the merits hearing would prevail.

          Which would make finding a willing and mutually-acceptable arbitrator that much more challenging, but that’s a different story.

          The further you drill down into this thing, the closer to the event horizon of ridiculousness you get.Report

          • Avatar Michael Cain says:

            Have we seen one of these NDAs? Who signed representing the other side, and in what capacity?Report

            • There is various reporting on this, but one that caught my eye was Mark Zaid, who says he’s seen one and they were basically the standard issue Trump company ones reworked for the White House:

              During a phone call on Monday, Zaid told THE WEEKLY STANDARD that he had previously seen a version of a White House NDA, and that the U.S government—not a private organization (such as the Republican National Committee) or the Trump campaign)—had been party to that agreement. He could not determine whether the NDA he saw was merely an early draft or a final document.

              “What it looked to be is simply a Trump Corporation NDA, converted to be used for those working in the White House,” he said.

              Zaid, who works frequently on cases involving national security, free speech, and non-disclosure agreements, said that the potential use of an NDA for unclassified information would represent a remarkable split from previous administrations. In the private sector, non-disclosure agreements and non-compete clauses are not out of the ordinary, but such agreements are not typical within the government. Most government NDAs are used in relation to classified national security information.

              Of course, the lack of firm details about the NDA makes it difficult to judge its legality. ( Read Jonathan V. Last on the questions that have yet to be answered about these agreements.) But, according to Zaid, “The courts have been clear that any NDA that extends beyond classified information would be unconstitutional as an infringement of free speech.”


    • Avatar PD Shaw says:

      I don’t necessarily disagree, but it doesn’t address that the executive has a privilege, rooted in the need for deliberative process. I know the privilege is not popular in many corners, but it exists and even the SCOTUS requires clerks to sign a confidentiality agreement before they start work. I’m pretty sure the SCOTUS believes in the value of confidential deliberation in any event.

      So can the President use a contract to protect the privilege? And are contract remedies effective to protect the privilege anyway? I lean towards “yes” to the former, but “no” to the latter.

      And all of this would normally be quite academic in a normal presidency where presidential aides are chosen foremost for unswerving loyalty to the Chief and fealty to party.Report

      • Avatar Burt Likko says:

        Well, that’s a different legal argument altogether. An NDA is a contract, plain and simple.

        To my knowledge, executive privilege has never been invoked as a basis for a civil action. It has been invoked as a defense to discovery and compelled testimony.Report

        • Avatar PD Shaw says:

          I don’t know that executive privilege has ever been invoked offensively either, but it seems reasonable to me that its existence means that executive deliberations are legitimate interests that can be properly protected by a non-disclosure agreement. (Not to suggest that all of Trump’s complaints, at least I understand them, fall under the scope of deliberative privilege. Her opinions of him in particular.) For me it starts to fall apart on remedies, either monetary damages cannot be proven (or in the case of stipulated damage clauses not enforced accordingly), or any injunctive relief will be subject to a lot of countervailing issues, not the least of which is the first amendment issues, which I think you commented on here earlier this year?Report