FACT CHECK: Omarosa Said A Hush Money Agreement She Was Offered Was ‘Unlawful’ – Was It?
Omarosa Manigault Newman, former aide to President Donald Trump, said that a contract she was allegedly offered by the Trump campaign after being fired from the White House was an attempt to buy off her silence. She called the offer “unlawful.”
Legal experts disagree about whether such an agreement could have prevented Manigault Newman from discussing her time in the White House. Precedent says that the government cannot keep former employees from discussing non-classified information, and that principle might apply to the proposed campaign agreement.
Other parts of the agreement could have been enforceable, though, and “hush money” contracts are not unlawful in principle.
Manigault Newman, a former contestant on “The Apprentice,” served as the director of communications for the White House Public Liaison Office before her departure in December 2017. Her recently released book about her time in the White House, “Unhinged,” alleges that Trump campaign adviser Lara Trump offered Manigault Newman a $15,000 per month campaign position in exchange for keeping quiet about her time in the White House.
She discussed the agreement on “Meet The Press” on Aug. 12. “I worked my butt off to make a difference in this country and they were looking for ways to frame me, and then, they tried to buy off my silence, which is also unlawful,” Manigault Newman said.
“Hush money” agreements, in which one person agrees to stay silent about a topic in exchange for money, are often valid and enforceable if both parties willingly enter into the contract. But legal experts disagree about whether the contract that Lara Trump offered Manigault Newman could keep her from discussing her time in public service.
The contract included a broadly-worded provision that prohibited her from disclosing any “confidential information,” including “appointments, meetings, conversations, notes and other communications” about Trump, Vice President Mike Pence or either of their families, even after the campaign ends. It did not specifically mention her time in public service, but it could be interpreted to apply to Manigault Newman’s time in the White House. She says that she did not sign the agreement.
Trump has reportedly required employees to sign other broad nondisclosure agreements. A Washington Post column from March said that senior White House staff members were asked to sign agreements prohibiting them from revealing information about their time in the White House, even after Trump’s presidency. A different nondisclosure agreement from the 2016 campaign included a provision to not “demean or disparage” Trump during the term of employment and “at all times thereafter.”
The alleged agreement that Manigault Newman declined to sign included a non-disparagement clause as well.
Legal precedent says that ex-federal employees cannot be required to promise silence on non-classified matters. For that reason, some experts say that the nondisclosure provisions in the White House contracts could violate the First Amendment.
“The government has no legitimate interest in censoring unclassified materials,” the 1983 District of Columbia Circuit Court case McGehee v. Casey explained.
The agreement offered to Manigault Newman after her time in the White House is different, though. The contract, along with its nondisclosure clause, would have been with the Trump campaign, not the federal government.
But Bradley Moss, a partner at the Mark S. Zaid, PC law firm and contributor to Lawfare, thinks that the $15,000 per month agreement would still not be enforceable because he says it is a poor attempt to get around legal precedent.
“They were effectively trying to circumvent the existing case law on the subject by having the campaign, not the Government, impose the retroactive NDA,” Moss told The Daily Caller News Foundation in an email. “I would argue that such a contract is constitutionally unenforceable no matter if coming from the campaign or the government itself. To permit the former to pull that off would be contrary to public policy.”
Ken White, a partner at Brown White & Osborn LLP who blogs as Popehat, also argued on the “All The President’s Lawyers” podcast that this type of agreement would fail the test of “unconscionability” – a legal doctrine that makes a contract unenforceable if it violates public policy or is otherwise inappropriate.
“A nondisclosure agreement may well be enforceable by a private entity, but it’s extremely dubious that you could enforce one to get people to stop talking about their public service, their paid work as a government employee,” White said on Aug. 15. “The idea is that restricting a public employee or a former public employee from talking about public service like that is unconscionable.”
University of Florida law professor Mark Fenster told TheDCNF that he was not as convinced that a court would find the agreement unconscionable, however.
“If an arbitrator proves sympathetic to her argument, then I can see that if she wants to speak publicly about an issue of great public importance, it might be deemed against public policy to enforce the agreement. Might,” Fenster told TheDCNF in an email.
He said that even if a court found that the agreement could not stop her from speaking about her time in the White House, other parts of the agreement would be enforceable.
“She was clearly wrong to state that it was unlawful to present her with the agreement, especially as it clearly would be ok to have her agree to be silent and non-disparaging during her employment by the campaign regarding issues that arise during the campaign,” Fenster said. “In that regard, it would clearly be enforceable, just perhaps not as broadly as the campaign and President might wish. It’s therefore clearly not unlawful.”
The experts noted that even broad nondisclosure agreements that are not fully enforceable are often still effective at intimidating employees into silence when they lack the resources to defend themselves or seek legal advice.
There is a lack of consensus about whether a private agreement could prevent individuals from talking about their public service in part because it is a new legal question. “There is – to my knowledge – no precedent for a campaign seeking to contractually silence a former federal employee with respect to the work that person did while serving in the government,” Moss said.
While Manigault Newman says she did not sign the “hush money” agreement, whether the Trump campaign can prevent former public servants from discussing their time in the White House remains a relevant legal question. The Trump campaign filed an arbitration case against her last week for allegedly breaking a 2016 campaign agreement.
A representative for Manigault Newman did not respond to a request for comment.
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