Teri Kanefield+ Your Authors @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Jan. 29, 2019 2 min read + Your Authors

(Thread) Trump and his NDAs (nondisclosure agreements)

Again Trump threatens to sue ex-White House staff for violating an NDA:

Spoiler: Trump’s NDAS are unenforceable and they demonstrate why he was the perfect “tool” for the Russians.

1/ Kellyanne Conway confirmed that “everyone” in the West Wing signs NDAs.

Omarosa made public the agreement she was asked to sign:  https://www.cnn.com/2018/08/14/politics/trump-campaign-nda-omarosa/index.html 

Typically Non-Disclosure Agreements are used to guard trade secrets:

2/ Trump uses NDAs to guard his personal secrets and to prevent people from saying negative things about him.

The first problem with NDAs is a feature in contract law: There’s no penalty for breach. There are exceptions (punitive damages) but . . .  https://www.legalmatch.com/law-library/article/breach-of-contract-penalties.html 

3/ . . the general rule is that if you breach, you pay the actual damage caused by the breach.  https://www.legalmatch.com/law-library/article/breach-of-contract-penalties.html 

Okay, so: What are the actual damages to Trump if someone tells the truth about him?

4/ The statement: “I, the President of the U.S., was damaged when someone told the truth about me,” has obvious problems.

White House NDAs also pose a First Amendment problem. Under the First Amendment, the government can't silence a citizen without a compelling reason.

5/ Omarosa’s agreement contains a non-disparagement clause, requiring that she promise that during the term of service “and at all times thereafter” she won’t demean or disparage publicly, in any manner, Trump, Pence, or any members of their families.

6/ So, the contract seeks to forbid a citizen, for the rest of her life, from criticizing the president, the vice president, and their families.

I think we can assume others were given—and signed—similar clauses.

7/ The contract also contains an arbitration clause, which is (arguably) unenforceable because it has an illegal purpose: Hiding info from the public about the POTUS & preventing a citizen from criticizing the president.

8/ Apparently attendees at the June 2016 Trump Tower meeting signed NDAs, which brings us to another shortcoming of NDAs: If subpoenaed, you have to talk.

9/ WaPo last year reported that White House NDAs included a $10 million penalty for breach.  https://www.washingtonpost.com/opinions/trumps-nondisclosure-agreements-came-with-him-to-the-white-house/2018/03/18/226f4522-29ee-11e8-b79d-f3d931db7f68_story.html?utm_term=.c28af6d3903c 

10/ This is called a liquidated damage clause, and it’s legal if actual damages are difficult to calculate, and if the amount demanded is reasonable.
Any monetary damages for telling the truth about the president is laughably unreasonable.

11/ Think of punitive liquidated damages as the ultimate bullying tactic: "If you talk badly about me, I’ll send my lawyers after you, and they’ll take everything you own."

Yes, this has a lot in common with mob lawyers.  https://www.nytimes.com/1985/03/12/us/work-of-lawyers-for-mob-studied.html 

You can follow @Teri_Kanefield.


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