Omarosa Manigault-Newman, the reality show villain who, for some inexplicable reason, was given a senior position within the White House, has a new book out. It’s called “Unhinged: An Insider’s Account of the Trump White House,” so it doesn’t take a very stable genius to figure out that the book isn’t terribly complementary to Manigault-Newman’s former employer.
Among other things, the book reportedly accuses President Donald Trump of using racial slurs against African-Americans and people of Filipino descent, and it claims that Trump’s “mental state was so deteriorated that the filter between the worst impulses of his mind and his mouth were completely gone.”
As if to prove Manigault-Newman’s point, Trump took to Twitter on Monday to clap back at his former aide.
Wacky Omarosa already has a fully signed Non-Disclosure Agreement!
— Donald J. Trump (@realDonaldTrump) August 13, 2018
Manigault-Newman may very well have signed such an agreement, but it is unlikely that this agreement will benefit Trump. Both the First Amendment and the state legal doctrines that typically govern such agreements weigh against permitting the president to lock senior aides into broad non-disclosure agreements.
A half-century ago, in Pickering v. Board of Education, the Supreme Court made clear that government employees may not “constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with” the government office where they work. Pickering involved a public school teacher who was fired after sending a letter to the local paper criticizing the local board of education’s fiscal policies. As the Court explained, permitting government employers to retaliate against such employees would damage our democracy.
“Free and open debate is vital to informed decision-making by the electorate,” Justice Thurgood Marshall wrote for the Court. And “teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent.” If government workers are not allowed to speak publicly about their employers, the people with the most informed opinions about government operations will be silenced.
To be sure, Pickering did not hold that government speakers may speak whenever they want on any topic whatsoever without facing job consequences. Among other things, Pickering suggested that government employees who are in “the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning” may be fired if they do not show such loyalty. But, while this language in Pickering might justify Trump’s decision to fire Manigault-Newman if she had criticized him while she was still on the White House payroll, that does not mean that he can compel her silence forever.
Rather, Pickering held that courts must strike a balance between a public employee’s interest “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Here, Manigault-Newman’s interest in warning the public if the nation’s highest official is a racist or mentally incompetent is great, while it is unlikely that the government will operate less efficiently if a former employee criticizes the president — and even if it does, that loss of efficiency is outweighed by the public’s interest in being aware of a high elected official’s character flaws.
It should be noted that the Roberts Court shrunk Pickering‘s protections somewhat, at least for current employees who speak pursuant to their official duties. There is also a very real danger that a Republican-controlled Supreme Court will be reluctant to apply the First Amendment in a way that could embarrass a Republican president. In Chief Justice John Roberts’ America, litigation is often just politics by other means.
But it is also far from clear that the Supreme Court will have any say over whether a non-disclosure agreement between Trump and Manigault-Newman can be enforced. Non-disclosure agreements, after all, are contracts. And contracts are typically enforced in state courts.
The alleged agreement that Trump refers to in his tweet is not public. In the past, however, Trump used non-disclosure agreements which provided that any disputes arising under the agreement would be governed by New York law. Notably, after Manigault-Newman left the White House, the Trump campaign offered to buy her silence in return for at $15,000 a month “consulting agreement.” That proposed agreement, which Manigault-Newman declined, also would have been governed by “the laws of the State of New York.”
Typically, moreover, non-disclosure agreements are used to protect sensitive information relating to an employer’s business — things such as trade secrets or information about an employer’s clients. The idea is to protect employers from a situation where an employee shows up, gathers information that they couldn’t have learned outside the company, and then uses that information to compete unfairly against their former employer.
Additionally, New York courts have held that non-disclosure agreements may be unenforceable if they violate “the public policy of the State of New York.” This is a vague standard, but it is broad enough that a New York court could very well conclude that the public’s interest in being able to evaluate a sitting president is so great that it does not make sense to compel enforcement of a non-disclosure agreement binding Manigault-Newman. State courts are especially likely to reach such a conclusion with respect to personal information about Trump’s character, which has nothing to do with the kind of sensitive information that is typically protected by non-disclosure agreements.
So Trump may very well have a document, signed by Manigault-Newman, that purports to be a non-disclosure agreement. But it is unlikely that Trump will get much use out of this agreement.