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Nondisclosure agreements are rare in government. Here’s why

The Trump campaign is suing former staffer Omarosa Manigault Newman for allegedly violating a nondisclosure agreement she signed when she joined the campaign. The Trump administration has also reportedly tried to get White House staff to sign similar agreements. What is an NDA and how are they used in the federal government? William Brangham gets analysis from attorney Mark Zaid.

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  • Judy Woodruff:

    The Trump campaign is suing former staffer Omarosa Manigault Newman for allegedly violating a non-disclosure agreement she signed when she joined the campaign in 2016. As William Brangham explains, this comes amid reports that the Trump administration has also tried to get White House staff to sign similar agreements.

  • William Brangham:

    These non- disclosure agreements are increasingly common in the corporate world, but far less so in government. The Trump campaign alleges that Manigault-Newman is violating the agreement with her recent accusations that the president is a racist and is suffering a mental decline.

    Mark Zaid is an attorney who specializes in national security and these kinds of contracts.

    Welcome back to the show.

  • Mark Zaid:

    Thank you William.

  • William Brangham:

    For people who are not familiar with what these NDAs are, generally speaking, what are they — what are they for?

  • Mark Zaid:

    Sure. So, an NDA is a non-disclosure agreement. It's a confidentiality agreement that is entered into by one or two or more parties to set terms as to what can be discussed going forward. And it may have a set term in life or it could be as actually this document says in perpetuity. That Omarosa, if she signed it, and apparently she did, that she is not allowed to disparage Trump, his family, his businesses during the service of the campaign and then the kicker is and at all times thereafter.

  • William Brangham:

    So, that was a contract she made when she was a, quote/unquote, private citizen. There have been other reports, including from Omarosa herself, she told this to Judy Woodruff last night, that the Trump administration, government employees, are asking fellow government employees, staffers at the White House, to sign similar agreements.

    Is that common?

  • Mark Zaid:

    That is not common, at least in the context that we have seen it arisen within this administration. This administration has brought its corporate mentality into public service. And they don't always mix very well at all.

    Now, many of us who have worked either in government or work with government when I represent intelligence officers and military, I also have access to classified information. I sign a secrecy non-disclosure agreement. It pertains only to classified information. I can say anything otherwise that's unclassified.

    And when I represent people all the time who write books of their time in the CIA, or time in the Air Force, they submit their books for prepublication review, and it's culled for classified information only. The courts have made it very clear over the last four decades that there is no legitimate interest in the government in prohibiting unclassified information from being disseminated. So, what the Trump administration did in bringing its corporate mentality, they've tried in some cases, apparently succeeded, in getting people to sign non-disclosure agreements. Well, the courts —

  • William Brangham:

    Government employees.

  • Mark Zaid:

    Government employees.

    The courts have also said that those First Amendment rights that government employees possess post-employment in particular cannot be contractually given away.

  • William Brangham:

    You can't sign your rights away?

  • Mark Zaid:

    Absolutely. So, we're going to have, or Omarosa will have, a very complicated situation that I don't think has ever arisen before because with this administration, everything seems novel. That she has signed a non-disclosure agreement that pertains to the private entity of the campaign vehicle, even the transition team, still private, not public, that she may be responsible for what relates to that information as well as "The Apprentice" information where she supposedly signed an NDA, too.

    But then when she gets to her government service from January of 2017 to when she was terminated in December of 2017, a bubble may be surrounding that.

  • William Brangham:

    When she worked for the government.

  • Mark Zaid:

    For the government, that she can disseminate and discuss anything that happened during her time in the White House. The arbiters I'm sure have never dealt with this particular situation before, but I think the courts at least from the way I would interpret it, that that area of time has to be shielded from the NDA that existed during her time in the campaign.

  • William Brangham:

    Mark Zaid, thank you very much.

  • Mark Zaid:

    Thank you.

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