Teri Kanefield @Teri_Kanefield Author, Lawyer (U.C. Berkeley) My threads are here: terikanefield-blog.com/ Bio here: terikanefield.com/about-me George Papadopoulos called me deluded Aug. 31, 2019 3 min read

(Thread) Trump & his Non-Disclosure Agreements (NDAs)

They’re probably not enforceable, but they tell us a lot about Trump.

Last year Kellyanne Conway confirmed that “everyone” in the West Wing signs NDAs  https://www.politico.com/story/2018/08/12/conway-omarosa-non-disclosure-agreements-774148 

We saw Omarosa's, so we know what they contain.

1/ Omarosa’s NDA contains a non-disparagement clause, requiring her to promise that during the term of service “and at all times hereafter” she won't demean or disparage publicly, in any manner, Trump, Pence, or any members of their families.
 https://www.cnn.com/2018/08/14/politics/trump-campaign-nda-omarosa/index.html 

2/ So, the contract forbids a citizen, for the rest of her life, from criticizing the president, the vice president, and their families.

This obviously poses a First Amendment problem.

Trump (and the entire Trump-FOx-GOP) is all confused about the First Amendment.

3/ The First Amendment isn't about the freedom to utter hate speech or have a national platform for bogus theories.

First Amendment says the government can’t silence a citizen without a compelling reason.

It requires government action.

The White House is a government entity.

4/ Typically Non-Disclosure Agreements are used to guard trade secrets.
 https://www.nolo.com/legal-encyclopedia/nondisclosure-agreements-29630.html 
Trump uses his to guard his personal secrets and to prevent people from saying negative things about him.

The next problem with Trump’s NDAs is a feature in contract law. . .

5/ There’s no penalty for breach. There are exceptions (punitive damages) but but 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 

OK, so.

What are the actual damages to Trump if someone tells the truth about him?

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

Next problem, what @CheriJacobus recognized as Trump threatening a citizen ⤵️

7/ Last year, the Washington Post 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 

This is called a liquidated damage clause. It’s legal if actual damages are difficult to calculate, and if the amount demanded is reasonable.

8/ The NDAs cover truthful statements.
You don't need an NDA to protect yourself against lies.

Libel and defamation laws already protect against lies.

Trump is thus saying that if someone tells the truth about him, the damage is about $10 million.

9/ Any monetary damages for telling the truth about the president is laughably unreasonable.

The next problem: The White House is forcing employees to sign illegal contracts.

10/ According to the New York Times, when White House lawyer McGahn drew up the White House NDAs, he warned Trump that they probably couldn’t be enforced.

McGahn also told aides the NDAs were “mainly to placate the president.”
 https://www.nytimes.com/2018/03/21/us/politics/trump-nondisclosure-agreement.html 

11/ Unenforceable contracts with liquidated damages serve a purpose: Intimidate people into silence.

Punitive liquidated damages in an NDA are the ultimate bullying tactic: “If you talk badly about me, I’ll send my lawyers after you, and they’ll take everything you own.”

12/ Yes, this has a lot in common with the mob, and mob lawyers.

Mob lawyers are a thing. See:  https://www.nytimes.com/1985/03/12/us/work-of-lawyers-for-mob-studied.html 

Trump employs lawyers to do his bidding, which includes ignoring the law if it stands in his way.

13/ Recall that the Steele Dossier alleged that Trump typically silenced witnesses against him⤵️

Trump’s history of silencing people creates a pattern that helps substantiate the claims in the Steele dossier.

14/

Q: Why the need for so much secrecy?

A: Trump inhabits a made-up world of his own creation. In the story he has invented, he's a smart and successful businessman and whiz deal maker.

Maintaining the fiction requires hiding the truth.

Hence, his love of NDAs.

And then a bunch of you come along and summarize my entire 14-tweet thread in under 10 words. Like this:

All of my threads are also blog posts. You can see this one here:  https://terikanefield-blog.com/trump-and-his-ndas/ 

For those who still prefer facebook, I also post my Twitter thread/ blogs to a Facebook author page:  https://www.facebook.com/terikanefieldauthor/ 


You can follow @Teri_Kanefield.



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