Remember when Presidents were expected to at least pretend to care about the Constitution?
Those days are over. In their stead we have a new master: the non-disclosure agreement.
NDAs, as they are regularly abbreviated, are commonly used in business. They are used to prevent confidential and proprietary material – trade secrets – from being exposed by former employees. Without them, businesses would regularly see their most informed talent hired away and with them, company secrets.
Their use has been extended over time to include any information which could be damaging to their former employer.
They haven’t typically been used to assert ownership over a person, however. At least as far as public release goes (I have no idea what language has been inserted into private agreements, although I expect some of it is designed to impart fear, rather than pass legal muster) this seems to be a new low.
The subject of my ire is the NDA released by CNN on Tuesday. While much of the agreement seemed to be overreaching and Constitutionally dubious, the second section in particular angers me.
2. No Disparagement. During the term of your service and at all times thereafter you hereby promise and agree not to demean or disparage publicly the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any asset any of the foregoing own, or product or service any of the foregoing offer, in each case by or in any of the Restricted Means and Contexts and to prevent your employees from doing so.CNN
“at all times thereafter”. That is not an agreement of employment. That is a purchase. In this NDA, Trump is purchasing the speech rights, in perpetuity, of anyone foolish or desperate enough to sign… and, in the case of business owners, for any of their employees.
Set aside the Constitutional issue for a moment. That any American politician would attempt to do this amazes me. That any other pundits, politicians, or even those claiming fealty to the Constitution would then defend such a politician galls me.
There are certain actions which undermine the very foundation of the country. They tend to be far less flashy than simple bad decisions, like hiring Omarosa or supporting a boycott of Harley Davidson, but they are more damaging in their implication.
Going back to the Constitutional issue, there are many legal scholars who believe that the Trump NDAs will not pass legal challenge. This has already been addressed with the revelations of the NDAs White House staffers were expected to sign.
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.Reuters
The defense of the NDA comes at the best time for Trump; against Omarosa, a known liar and a person whose public persona is vile. The question is not Omarosa’s character (or lack thereof), however; rather, it is her freedom. Does she still have it? Is she still endowed by her Creator unalienable rights… or does Natural Law bow before Trump in the new America? If the latter, will not future business and political leaders take the opportunity granted to create their own fiefdoms against the whistleblowers and critics?
Trump is attempting something that even Harvey Weinstein merely dreamed about.
For it is not just Omarosa who signed those agreements, it is hundreds of staffers on the Trump campaign. Hundreds of staffers who, even if they are now appalled by what they had done, are afraid to speak out for fear of crippling economic penalties or even incarceration.
This is why Trump is suing Omarosa. If he lets her allegations stand, it signals to all of the other campaign workers that they are not, in fact, permanently chained to the Trump plantation. By suing, he keeps the threat hanging over all of the others.
And, the law being the law, he might even win his case, counter to the general wisdom of the legal community. If he does so, it will be a grievous wound to the body of liberty.