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President Donald Trump has reportedly asked members of his White House staff to sign nondisclosure agreements. As the Washington Post reported on Monday:
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.
On Tuesday, at her daily briefing, White House press secretary Sarah Huckabee Sanders pushed back on the notion that these NDAs were outside the norm of previous administrations. “Despite contrary opinion, it’s actually very normal and every administration prior to the Trump administration has had NDAs, particularly specific for anyone that had a security clearance,” Sanders said.
Is this normal?
Previous administrations have indeed required government officials to promise they would not reveal certain information to the public, even after leaving the White House. But that ban has always—in one way or another—specifically been restricted to classified information. President Ronald Reagan introduced nondisclosure agreements for classified information in the 1980s in a way that many initially considered to be overly broad. Reagan began requiring executive branch officials to sign a form called Standard Form 189, or the “Classified Information Nondisclosure Agreement,” which demanded that officials keep secret any information that is “classified or is classifiable.”
This vague “classifiable” definition resulted in lengthy congressional and court battles over efforts to protect potential government whistleblowers. After Steven Garfinkel , director of the agency that oversees classification from 1980 to 2002, told a congressional investigator that the term “could mean anything,” Congress began to seek to limit the form’s scope, and a group of government employees sued. Republican Sen. Chuck Grassley of Iowa actually called on government officials to ignore the pledge. As Angus MacKenzie wrote in Secrets: The CIA’s War at Home, the Congressional Research Service’s legal arm reviewed Standard Form 189 at Grassley’s request and found it was “arguably in conflict with the language and intent of” whistleblower statutes then on the books.
In the midst of these legal and legislative fights, Garfinkel modified the scope of the NDA to cover “unmarked classified information … in the process of a classification determination.” The administration’s classification definition initially passed judicial muster at the district court, but the Supreme Court ruled that the issue had not yet been ripe for a decision and sent it back to the district level. During this period, Congress started issuing an appropriations rider that blocked the enforcement of SF 189. But the unfavorable district court ruling threatened that rider, and in 1988, Reagan said that it had no effect. At this point, Standard Form 189 became Standard Form 312, and the “classifiable” language was removed from the form.
Ultimately, both the legal challengers and the congressional leaders reached a compromise with the George H.W. Bush administration on the use of SF 312. That agreement, and all such agreements, would include a provision saying that any whistleblower laws superseded it. This was encoded in the yearly appropriations rider as well as in the 2012 update to the 1989 Whistleblower Protection Act. Tom Devine—the legal director at the Government Accountability Project who helped craft the compromise language in the early 1990s—told me that his group essentially won a definition of classification that wasn’t as broad as Reagan first sought it to be. “The information has to be specifically designated ‘marked as classified’ … or needs to be for national security purposes,” Devine told me. “You’re entitled to notice” that something is classified, he added. Even under Reagan’s since-disregarded and overly broad definition, “classifiable” information ostensibly had to have something to do with national security, Devine said. “In principle there was that limitation to it,” he told me.
That current form, SF 312, is likely what Sanders was talking about when she said that every administration required nondisclosure agreements. Indeed, two former members of the Obama administration, Lisa Brown and Andy Wright, told me that this was the form that they had signed for security-clearance purposes. Neither of them recalls signing any other type of nondisclosure agreement. “It’s basically just a commitment not to release classified information you have access to,” Wright said of SF 312. “That’s not what these are. These sound like they’re political NDAs not actual security NDAs.”
According to the Post, former Obama adviser David Axelrod said it would be “unthinkable” for Obama to have requested employees sign something similar to what’s been reported Trump has requested. Ari Fleischer, who was a press secretary under George W. Bush, also told the Post that Bush aides were not asked to sign such agreements. A likely reason that past administrations haven’t requested these is that there is wide agreement that they would violate both whistleblower statutes and First Amendment case law.
Attorney Mark Zaid, who told me he’s seen a copy of the Trump White House NDA, offered on Twitter on Monday to represent pro bono any Trump official who was made to sign one. “Either she’s completely ignorant, or she’s lying,” Zaid told me of Sanders’ statement that other administrations had done something similar.
Citing a pair of cases in the 1960s and 1980s, Zaid also noted that it’s been long established that the government can’t block the publication of nonclassified information by former government employees just because it doesn’t like the content, even in the cases of CIA officers. “You have no First Amendment right to [publish] classified information,” he said. “But if it’s determined to be unclassified, you have as a former government official every constitutional right to publish and disseminate that information.”
Requiring government employees to protect secrets that could pose a threat to national security if revealed is normal. Requiring government employees to protect secrets that could pose a threat to Donald Trump’s reputation is very much not normal, nor is it legally enforceable according to long-standing precedent.