STEVE INSKEEP, HOST:
The former reality TV star now in the White House typically has multiple reality show-style subplots all churning around him at once. He's done a lot to keep the Omarosa subplot going. And just as when she was a contestant on "The Apprentice," Omarosa Manigault Newman has proven very effective at commanding the screen herself. After releasing a book, she has released tapes raising questions about whether the president ever used the N-word. And on Twitter, the president called her a, quote, "crazed, crying lowlife" and a dog. The Trump campaign has now filed for arbitration, accusing her of violating a nondisclosure agreement, or NDA. Reporters yesterday asked White House spokesperson Sarah Sanders about this on Tuesday.
(SOUNDBITE OF PRESS CONFERENCE)
UNIDENTIFIED REPORTER: Have you signed an NDA?
SARAH SANDERS: I'm not going to get into the back-and-forth on who has signed an NDA here at the White House. I can tell you that it's common in a lot of places for employees to sign NDAs, including in government, particularly anyone with a security clearance.
INSKEEP: Really? Well, Bradley Moss is with us to talk this through. He's an attorney who specializes in government transparency and national security.
Welcome.
BRADLEY MOSS: Good morning, Steve. How you doing?
INSKEEP: I'm doing OK. Thanks very much. Do White House aides really commonly sign NDAs as the White House spokesperson just claimed?
MOSS: No. I think Sarah Huckabee Sanders was being a little disingenuous there, though she did make at least one accurate point. By and large, all federal employees, particularly those who hold security clearances, will sign a nondisclosure agreement called the Standard Form 312. That concerns the obligation that extends for life to not disclose classified information that these individuals had learned as part of their employment. But beyond that, the government does not impose nondisclosure agreements on former federal employees with respect to any unclassified information, no matter how "confidential," quote, unquote, or sensitive or embarrassing that they may have learned during their time in public service.
That's based on 40 years of case law. The courts have fleshed it out pretty clearly. Once a federal employee leaves the U.S. government, their First Amendment right to talk about whatever they saw and observed and did in government cannot be restricted with the exception of classified information.
INSKEEP: OK. This makes perfect sense to me because we should remember it's a democracy, meaning that the people who are in the government, they work for you. They work for me. We're the boss. And so we have the right to get information from them if they are able to share it, if it's not classified. Are you saying that, even if there are White House aides who signed an NDA, it is unenforceable, it means nothing?
MOSS: Yes, absolutely. And it seems, you know, at least based on the media reports and what we've heard over the last few months - I know The Washington Post did a piece on it back in March - that there were these basically pro forma NDAs that the Trump administration had people sign in 2017. Don McGahn basically told people to sign it to assuage the president's ego even though they were not going to be enforceable. And they wouldn't. As a matter of law, they'd be thrown out as unenforceable. They conflict completely with the existing case law. It simply is not viable.
INSKEEP: But in this case, we have the Trump campaign that says that Manigault Newman had an NDA that she signed with them. So this is an outside-of-government entity. And they are filing for arbitration, meaning that she might be forced to pay some kind of penalty. Is that legal?
MOSS: Yeah. So this is interesting. This is what, in the legal community, we call a case of first impression. I'm not aware of anyone ever trying this. This is a nice innovative move by the Trump campaign. They're trying to take their campaign-era NDA, which absolutely applies to anything Omarosa has talked about in her book or in public interviews regarding her time on the campaign or during the transition, and they're trying to extend it to cover her time in the White House. To my knowledge, no political campaign has ever attempted this particular legal maneuver. And no one knows for sure how the courts would view it because if the arbitrator concludes that that NDA can encompass what Omarosa is talking about from her time in the White House, it would basically circumvent 40 years of existing case law with respect to the First Amendment rights of former federal employees.
INSKEEP: OK. If that arbitrator were to rule against her, how much trouble could she be in?
MOSS: If she loses that case, she's going to face significant monetary damages. But in the end, even if the campaign loses this fight, this is really about intimidation. This is about trying to put a warning shot out to anybody else who used to be part of the Trump inner circle and worked in the White House. Don't you dare step out of line. You better keep your mouth shut.
INSKEEP: OK. Bradley Moss, thanks very much.
MOSS: Absolutely. Have a good morning.
INSKEEP: Bradley Moss is an attorney who specializes in government transparency and national security. He's also been writing for the blog Lawfare. Transcript provided by NPR, Copyright NPR.
