(Reuters) - In a provocative column Sunday night, the Washington Post reported that the Trump administration required senior White House officials to sign agreements forbidding them to disclose any confidential information about their work – not just during their time in office but even after they leave the White House.
The Post’s Ruth Marcus obtained a draft version of the non-disclosure agreement. It said violators would face a $10 million penalty for every disclosure of nonpublic information they learned during their White House tenure, though Marcus said the penalty was probably reduced in the final version.
The White House said in a statement Monday to Jake Tapper of CNN that White House staffers “were never asked or required to sign NDAs with $10 million clauses. Beyond that, we do not discuss security or personnel matters.” Reuters, which was unable to verify the Washington Post report, did not obtain an immediate response to an inquiry Sunday night about the purported NDAs.
I’m sure even a million-dollar risk would make anyone think twice about leaking confidential information from the Trump White House but according to two law professors who specialize in government secrecy and the First Amendment, the contracts described in the Post story would almost certainly be deemed unenforceable if they were tested in court.
The NDAs, as described by the Post, contain an essential constitutional flaw. White House employees don’t work for President Trump. They work for the United States, so the U.S. is the supposed beneficiary of the non-disclosure agreements.
The U.S., and not President Trump, would also be responsible for enforcing the agreements, said law professors Heidi Kitrosser of the University of Minnesota and Mark Fenster of the University of Florida. But the First Amendment protects people against government restrictions on free speech. “These NDAs strike me as clearly unconstitutional under the First Amendment,” said Kitrosser.
“A public employee,” added Fenster, “can’t be forced to sign away the right to speak.”
There are some important caveats to point out. First of all, said Liz Hempowicz of the non-profit Project on Government Oversight (POGO), we don’t know what the final version of the Trump administration NDAs said.
Hempowicz also said POGO has “really significant concerns” about any attempt to muzzle White House officials, especially if the NDAs do not contain explicit language assuring employees that they’re not precluded from reporting suspected wrongdoing. But Hempowicz said she’s seen enforceable non-disclosure agreements in which executive-branch agencies bar whistleblowing employees from revealing the details of their settlement negotiations with the government.
Hempowicz emphasized that the Trump NDA, if it’s similar to the draft described in the Post article, is much broader – and therefore more troubling - than the whistleblower agreements, but warned against quick assumptions that it’s unconstitutional.
Public employees, moreover, aren’t entitled to absolute First Amendment protection.
The U.S. Supreme Court, as I’ve reported, ruled in a 2006 case called Garcetti v. Ceballos that public employees can be fired or otherwise disciplined for speech connected to their jobs. (The case involved a deputy district attorney who complained he suffered retaliation after recommending the dismissal of a criminal case.)
Under Garcetti and previous cases in the same vein, government officials can face workplace consequences when they voice concerns about their jobs.
The Supreme Court has also upheld pre-publication restrictions for federal government employees who work with classified documents.
In 1980’s Snepp v. United States, the justices ruled that an ex-CIA agent breached his agreement with the agency when he published a book about CIA activities in South Vietnam without first allowing the CIA to review his disclosures. The court directed the ex-agent’s profits into a trust for the government.
So if you’re a current government employee or an ex-spy or FBI agent or otherwise handled classified material, you can get into trouble for talking. You may lose your job or your profits. But as the Washington Post described the Trump administration’s non-disclosure agreement, it purports to extend beyond current employees and to impose severe penalties for violations – and that’s where it runs into constitutional and administrative problems.
Law professors Kitrosser and Fenster said the president has the power to fire White House employees who divulge confidential information. Those who reveal classified secrets may face much worse punishment, including criminal charges. President Trump doesn’t need an NDA, in other words, to threaten consequences for leakers on his staff.
What about former White House officials who had access to secret information? Under the Supreme Court’s Snepp decision, they have to obtain pre-publication clearance. But the law professors and national security lawyer Bradley Moss of the Law Offices of Mark S. Zaid said agencies are only supposed to screen for classified information.
Under case law from the federal appellate courts, including the 4th U.S. Circuit Court of Appeals in 1972’s U.S. v. Marchetti and the D.C. Circuit in 1983’s McGehee v. Casey, ex-employees have a First Amendment right to disclose non-classified information.
“The government has no legitimate interest in censoring unclassified materials,” the D.C. Circuit wrote in McGehee, which involved an ex-CIA agent protesting the agency’s censorship of his manuscript after he submitted the work for pre-publication review.
McGehee’s employment agreement, the court said, “does not extend to unclassified materials or to information obtained from public sources. The government may not censor such material, ‘contractually or otherwise.’” (The D.C. Circuit was quoting from the 4th Circuit’s Marchetti decision in its reference to McGehee’s contract with the CIA.)
Those appellate rulings would be a big First Amendment obstacle were the Trump administration to attempt to enforce a non-disclosure agreement that barred former White House officials from revealing non-classified information.
And there’s an additional snag once Trump leaves office, according to Florida professor Fenster. Enforcement of any NDA would be up to the U.S. government, not to President Trump once he is a private citizen. A future president may not want to commit administration resources to policing former Trump officials.
“You could understand how someone like Donald Trump, who had never been in government … would come into government and want to do this,” said Fenster. “But it’s just not going to happen.”
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