A prominent Washington, D.C., attorney said his law firm will represent, pro bono, anyone who wants to challenge the draconian nondisclosure agreements President Donald Trump reportedly demanded early last year from his senior White House officials.
Mark Zaid, who represents government workers in free speech and national security cases, was responding to a Sunday report from The Washington Post that administration officials are prohibited from disclosing information both during their employment and “at all times thereafter.”
Each infraction would be subject to a $10 million fine, according to a draft agreement the Post obtained. The draft covered all “non public” communications, including conversations with the press and with any other government official. It even barred any revelations in works of fiction.
Zaid, a founding partner of the nonprofit law firm Whistleblower Aid, said the staffers can only lawfully be constrained from disclosing classified information when their employment is over.
Several free speech and civil rights experts besides Zaid said the agreement is unconstitutional, and therefore unenforceable.
“Public employees can’t be gagged by private agreements,” Ben Wizner of the American Civil Liberties Union said in a statement. “These so-called NDAs are unconstitutional and unenforceable.”
The agreements “strike me as clearly unconstitutional under the First Amendment,” University of Minnesota law professor Heidi Kitrosser told Reuters. University of Florida law professor Mark Fenster told the outlet that “public employees can’t be forced to sign away the right to speak.”
Experts also noted that White House staffers don’t technically work for Trump, but for the United States, which would be the only party that could enforce the NDAs — and that’s not likely to happen.
The highest-profile nondisclosure agreement currently linked to the president is the one between Trump lawyer Michael Cohen and Stormy Daniels, the adult film star whose real name is Stephanie Clifford. Daniels says she had a year-long affair with Trump, but Cohen has warned her that she could be sued for up to $20 million if she violates the nondisclosure pact she signed in 2016, reportedly in exchange for $130,000.
The White House has not denied the existence of nondisclosure agreements for senior administration staffers. However, it told Reuters on Monday that staffers “were never asked or required to sign NDAs with $10 million clauses.”
The Post speculated that senior staffers agreed to a lower amount before they signed. According to the Post, the staffers did all eventually sign the agreements, in part because many believed they could not be enforced.