According to legal experts the non-disclosure agreements (NDAs) that the Trump Administration required White House staff to sign are felony criminal violations, and put BOTH Trump Administration officials and the signers in serious legal jeopardy.
Much has been written about how the White House staff NDA’s are unprecedented and unenforceable:
Dozens of White House aides have signed NDAs in exchange for working for Trump, who has long relied on such agreements in his business career, according to current and former administration employees. But NDAs have not been widely used by past administrations outside the transition time between presidents, in part because most legal experts believe such agreements are not legally enforceable for public employees.
However, these NDAs are not just unenforceable. First, they are a clear violations of the Whistleblower Protection Act:
Simply put, it is illegal for anyone in the Trump administration to impose a nondisclosure agreement on a member of the federal government that in any way limits that person’s ability to communicate with Congress and expose waste, fraud, abuse and mismanagement.
And it gets worse, much, much worse. These NDAs constitute bribery of public officials:
(c)Whoever—(A) directly or indirectly gives, offers, or promises anything of value to any public official,…for or because of any official act performed or to be performed by such public official…; or(B) being a public official,…directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;…shall be fined under this title or imprisoned for not more than two years, or both.
What needs to be understood is that a person’s constitutionally protected right to free speech is a “thing of value,” and hiring a public official is an “official act.” Further, because the NDAs forbid speech that could be injurious to Trump, it is a thing of value to Trump in particular, not to the government who is the actual prospective employer. As far as the law is concerned, it is no different from a cash payment to Trump for a government job. If Trump were requiring that prospective employees pay him $1000 for a job he would be clearly understood to be soliciting a bribe.
Here’s where it gets interesting. Signing the NDA is therefore no different from paying the bribe in order to get the job, the thing of value to the prospect. Again, no different from paying Trump $1000 for a government job.
Former White House ethics counsel:
[Norman] Eisen points to the federal bribery statute (18 U.S.C. 201) as a statutory tripwire that Trump stumbled across. He says it is also clear that this is a personal concession to Trump, not to the government (e.g. a policy that says “thou shalt not leak”). “The thing that makes these NDAs, at least as described, different is that they continue to vest rights personally in the president even after he leaves office,” he says. “That shows that this is not a concession being made to the government in exchange for a job, but a personal one being made to the man who occupies the office. The president couldn’t of course demand a monetary payment from someone in order to be employed, and neither should he be able to do this.”
White House staff may not have considered that they were committing a felony, and exposing themselves to two years in federal prison, when they signed Trump’s NDA to secure their White House job, but they were.
Former director of the Office of Government Ethics:
Walter Shaub says simply that “you can’t go around trading things of value for federal appointments.” What’s apparent here is that Trump has no idea that working for the American people is different from working for his family operation.
Add to that extortion and emoluments violations, as constitutional scholar Laurence Tribe spells out:
“I’ve argued and believe that the NDAs Trump might have extracted from executive branch employees (if that story proves accurate) are a form of extortion in terms of what they extract from government employees and have the stench of bribery as well,” he tells me. “I also see them as akin to the domestic emoluments a president is flatly forbidden by [Article] II from receiving from any state or from any component of the federal government because, in effect, they add to the president’s congressionally fixed compensation something that amounts to a personal benefit contributed to him by federal employees as a condition of their jobs.” He explains that even if “financial supplements to Trump’s White House salary … aren’t in the form of cash but instead take the form of reputation insurance or enhancement shouldn’t obscure the principle at stake.” He adds that these concerns are, of course, in addition to “First Amendment issues with enforcing the NDAs through prior restraints.”
What we have is a criminal administration behaving in a criminal manner and not surprisingly breaking all sorts of laws in the process. Anyone that joins this criminal organization is unavoidably swept into criminal conduct and at extreme risk for serious criminal penalties.