By Tim Cushing
President Trump is fond of non-disclosure agreements. He’s been this way for far longer than he’s been president, but his insistence on foisting them on anyone who has worked for him has become problematic now that he’s the ultimate public figure.
Some of these NDAs have been broken inadvertently during the course of dubious lawsuits filed by former Trump associates against journalists. In other cases, the DOJ itself has gotten involved, trying to invoke possibly non-existent agreements with the government to block publications by former Trump staffers.
Now, a former Trump campaign staffer is in court challenging the legality of the NDA she signed when managing phone banks for Trump before moving up to be his director of Hispanic engagement. She argues the NDAs serve no purpose but to block speech critical of her former employer. (Non-paywalled version here.)
In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States—forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.”
As is the case with any agreement, people can voluntarily give up some of their rights (in this case, free speech) in exchange for employment. But there’s more to it than simply preventing the release of any information Trump might want to remain secret. It also says everyone who signed one must continue to play nice in perpetuity.[I]t contains a nondisparagement clause that prevents staffers from ever demeaning or disparaging the president, his family or his companies.
Denson is arguing this violates the state’s contract law, as well as her free speech rights under both the New York constitution and under the First Amendment. And it will probably be greeted with a strong defense from the Trump campaign, given the fact that Denson has already sued the Trump campaign for allegedly subjecting her to sexual discrimination and slander. That lawsuit, filed in 2017, has led directly to this legal challenge of the NDA itself, which Trump lawyers say Denson violated when she filed her discrimination lawsuit.
NDAs may be common but they’re never as necessary as those forcing them on employees think they are. Campaign staffers may have access to a lot of information candidates may not want to see released, but a lifelong gag isn’t the only way to handle this. The Wall Street Journal reports the Biden campaign does not require staffers to sign NDAs, indicating it’s possible to run a presidential campaign without swearing everyone to secrecy.
If this challenge is successful, it will be a nightmare for Trump and his campaign team. Very rarely has any former staffer or employee stepped forward with anything positive to say about the President. The criticism tends to flow faster now, given the turnover rate in the White House. Not every NDA is foisted on employees by bad employers, but a lot of them are. And when the employer ends up being the leader of the free world, it makes little sense for the man up top to continue to insist former employees can’t have full access to their rights.