Laurence Tribe and WAPO's Jennifer Rubin answer your questions on NDAs (legality/enforceability)

[hlthe2b]

https://www.washingtonpost.com/blogs/right-turn/wp/2018/08/14/the-stupidity-of-trying-to-enforce-trumps-ndas/?utm_term=.3505cf63233e

The stupidity of trying to enforce Trump’s NDAs

No matter how many times press secretary Sarah Huckabee Sanders, who regularly misrepresents facts and the law, says a nondisclosure agreement is common, to our knowledge such a restriction is unprecedented in the White House outside a classified security setting and, at any rate, is almost surely unenforceable with regard to her time in the White House. Mark S. Zaid, a lawyer who represents many federal employees in the national security realm, tells me, “As a government employee she is entitled to First Amendment protection, and no NDA can overcome it other than for classified information.” That might still allow Trump to shush her up with regard to matters before her government service, although the terms of the NDA are so broad they might be unenforceable on public policy grounds (e.g. the free exchange of information about presidential candidates is part and parcel of our democracy).

Harry Litman, a former federal prosecutor, predicts that “the NDA will be struck down as overbroad.” He explains, “There are legitimate reasons to preserve the confidentiality of some White House communications — e.g., about national security — but this is designed to sweep in almost all communications for all time.” From Trump’s perspective, “the problem is that the White House staff has First Amendment rights, and even more importantly that the public has a right to know about much of the day-to-day workings of the executive branch.” He adds, “Neither Trump nor any other president can just shield everything from public scrutiny.”


As to Manigault Newman’s time in the White House, however, she and the other staff, past and present, work(ed) for the taxpayers, not him. They are not his personal employees from whom he can extract a confidentiality pledge as consideration for hiring. White House staff are paid pursuant to federal law, and no provision allows for the government to extract such a promise of silence from a government employee. If Trump is trying to personally enforce the arbitration clause with regard to White House events, he’ll fail. His staffers in the administration don’t work for him, and he has given them nothing of value in exchange. (The taxpayers employed her.)

“It’s idiotic if its purpose is to prevail in the arbitration,” says constitutional scholar Larry Tribe. “It’s not necessarily idiotic if its only purpose is to continue deflecting attention from vastly more serious issues — like what Trump and Putin said to one another during that two-hour meeting in Helsinki, or which version of [Rudolph W.] Giuliani’s defense of Trump’s conversation with [former FBI director James] Comey about going easy on [Michael] Flynn the president wants us to accept.”

[smirkymonkey]

1. K&R

He's just being a bully, as usual.