Former officials slam reported White House non-disclosure agreements

Key Points
  • Senior White House officials reportedly signed non-disclosure agreements barring them from discussing "confidential" information, according to the Washington Post.
  • The agreements are reportedly written to last even after leaving the White House.
  • Constitutional watchdogs and former government officials took to social media to criticize the reported use of NDAs in the White House.
Chairman of the Republican National Committee (RNC) Reince Priebus (R) hugs Republican presidential elect Donald Trump during election night event at the New York Hilton Midtown in New York on November 9, 2016.
Mandel Ngan | AFP | Getty Images

President Donald Trump had senior administration officials sign agreements muzzling them from discussing confidential information even after leaving the White House, the Washington Post reported Sunday.

Transparency watchdogs and civil liberties groups are criticizing the reported NDAs as unconstitutional.

"Public employees can't be gagged by private agreements," said Ben Wizner, director of the American Civil Liberties Union's Speech, Privacy, and Technology Project, in a statement on Monday.

"These so-called NDAs are unconstitutional and unenforceable."

The Washington post reportedly viewed a draft version of the non-disclosure agreements. The draft would impose crippling $10 million penalties against a signee for each public statement of confidential information uttered, according to the Post. That money would go to the federal government, the Post reported.

"I guess it's like, pick your poison," Wizner said of the various legal problems with the draft agreement in an interview with CNBC. "I don't know which would be more absurd: paying Trump, or paying the U.S. Treasury."

"The fact that the government is listed here makes it even clearer" that the agreement violates the First Amendment, Wizner said.

Non-disclosure agreements in government — even those that extend beyond one's time of service — are not uncommon in certain contexts. Standard Form 312, for instance, is a form of non-disclosure agreement that applies to certain classified information.

But outside of those relatively narrow bounds, Wizner said, "the president has no authority to impose a gag as a requirement of the administration."

The draft reportedly defined "confidential" information as being "all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff," including "communications ... with members of the press" and "with employees of federal, state, and local governments."

A person who signed the final version of the agreement told the Post that Trump himself, with support from then-Chief of Staff Reince Priebus and the White House Counsel's Office, had senior White House staff sign the agreements.

And the non-disclosure agreements reportedly stayed in effect even after these officials left the White House. The newspaper wrote that the agreement would restrict the ability for Trump aides to discuss certain information beyond their White House service "at all times thereafter."

Neither the White House nor the White House Counsel's Office immediately responded to CNBC's requests for comment.

The Sunlight Foundation, a nonprofit that advocates for government transparency, condemned the reported use of hush agreements in the White House.

Sunlight tweet: Nondisclosure agreements have no place in statehouses, legislatures or city halls, much less the @WhiteHouse. Public servants & public business should be open & accountable to the public, not obscured by unconstitutional restrictions on free speech, @POTUS

Ian Bassin, founder of the democratic and constitutional advocacy group Protect Democracy and a former member of the White House Counsel's Office under President Barack Obama, claimed that requests to form non-disclosure pacts would have been turned down during his tenure.

Ian Bassin tweet: Occasionally an official would ask us in the Obama White House Counsel's Office if they could make their staff sign NDAs. We'd tell them no and explain that beyond classified material and federal ethics standards on confidential info, WH staff work for the public.

Walter Shaub, Obama's director of the Office of Government Ethics, questioned the legality and enforceability of the reported agreements.

Shaub tweet: government. This is clearly against public policy and is likely unenforceable. It also may violate the whistleblower protection law if anyone who signed it is covered by that law. In addition, it's not clear to me is what is the "consideration" for the contract. (Consideration /2