By admitting his widespread use of non-disclosure agreements, Donald Trump has once again confirmed his ignorance about government.
Non-disclosure agreements, or NDAs, are a controversial but widely-used contract private employers use to keep employees from talking about the knowledge they gain as a result of that employment. In effect, the private employer trades the job in exchange for the new employee’s agreement to keep silent.
In the private sector, such exchanges are possible because the job belongs to the private employer. Such is not the case in the government. When President Trump hires a staffer to work for him in the White House, the employer of those staffers is not Donald J. Trump or one of his companies, it is the government and ultimately the taxpayers.
This distinction is critical. Contract law states that for an agreement to be legally binding, consideration is required. Consideration can be defined as each side giving up something. Thus, when you enter a contract for someone to do a service for you, they give up their time and expertise while you give up your money.
When you enter government service, however, even in the White House, your employer is not your supervisor, or even the President. So your contract to not disclose anything you learn during your employment is with… the government. Even if we assume that such an agreement would be binding, it would be the government that could enforce it, not Donald Trump.
That assumption in itself is flawed, however. Again, the government is not like any other private employer. Where private employers can offer employment contingent upon the employee signing an NDA, the government cannot restrict people’s speech. We call it the first amendment to the Constitution, and it bans prior restraint of speech, which is exactly what an NDA is.
You may respond, yes, but it’s different for government employees. The Supreme Court, however, says different. In Pickering v. Board of Education, the Court held that government employees do not give up their free speech rights by virtue of their employment.
Of course, despite what 2nd Amendment advocates may say, no rights are unrestricted. Indeed, the government has an interest in stopping former employees from revealing classified information. But in fact, it has an interest in stopping ALL people from revealing classified information, it’s just that former federal employees have more access to it. As a result, the law says that government cannot treat its employees differently from other citizens when it comes to their free speech rights guaranteed by the First Amendment.
In short, even if Trump got his White House staffers to sign an NDA prior to starting their employment, the contract would be with the Federal government, not Trump, and the Federal government is Constitutionally barred from limiting free speech.
His demand that White House employees sign NDAs, however, says something very disturbing about Donald Trump. Since the White House job belongs to the taxpayers, not him, and through Congress we have a right to regulate the terms of employment of government employees, he is simply their temporary supervisor during his time as President.
Trump, however, has treated these employees as if they work for one of his private companies, and that their only loyalty is to his enrichment, not to the country as a whole. That is a big difference between private employment and government employment.
As a result, Trump is in effect taking advantage of resources that belong to the taxpayers to protect his personal interests. At this point, such self-service should not be surprising, but it is still worth our concern.
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