Trump's gag orders undermine the First Amendment

With the filing of an arbitration action against former aide Omarosa Manigault Newman by his campaign, Donald Trump ruptures yet another set of legal norms that every president before him respected. This time, he seeks to enforce a contractual “gag order” that has nothing to do with classified information. For a number of reasons, this sideshow should flop.

Let’s get one thing straight for starters. Federal employees with access to classified information sign federal standard form 312-13, which amounts to a pledge to “never divulge classified information to anyone” unless authorized. A breach can trigger “the termination of any security clearances[;] removal from any position of special confidence and trust requiring such clearances; or termination of . . . employment.” All of this is governed by federal law. Violations also can lead to criminal prosecutions under the United States Code. But it can’t automatically trigger the payment of millions in money damages from an employee’s pocket to the federal treasury — let alone to the Trump campaign.

As far as we know, moreover, the Manigault Newman dispute has nothing to do with unauthorized disclosure of classified information. In exchange for $15,000 per month, she signed a document agreeing “not to demean or disparage publicly, in any form or through any medium, the Campaign, Mr. Trump, Mr. Pence, any Trump or Pence Company, any Trump or Pence Family Member, or any Trump or Pence Family Member Company or any asset if the foregoing.” Manigault Newman was reportedly not the only person who signed such a thing. Trump also required numerous White House staff members to enter into similar non-disclosure agreements—known in the private sector as “NDAs” — as a condition of employment with the federal government. The NDAs are said to contain a $10 million stipulated penalty for violations, as well as mandatory arbitration.

This is unprecedented.

First, unlike for standard form 312-13, there is no federal law authorizing the executive branch to enter into private-sector NDAs with federal employees — let alone agreements purporting to trigger multi-million dollar liquidated damages awards for alleged violations.

http://thehill.com/opinion/white-house/402565-trumps-gag-orders-undermine-the-first-amendment