This article was originally published in The Washington Post. Read the original piece here.
Yet Congress explicitly outlaws federal spending for certain NDAs against federal employees — and Congress can slash the salary of any White House employee who tries to enforce one.
Each year, Congress passes appropriations legislation doling out money across the federal government — and that includes the White House. Some short sections of the lengthy laws include “rider” amendments that restrict the use of that money. One little-known provision allows Congress to block executive branch “payment of the salary” for any federal employee who attempts to prohibit or prevent another federal employee from communicating with Congress.
Congressional communication is a legally broad term. Some of the communication can be direct: an email to a congressional staffer, a dinner with a member of Congress, an appearance at an oversight hearing. But other communications can be more indirect. Because members of government, including Congress, read the news, speaking to the news media (or writing a book) can be construed under whistleblower laws as communicating with the government.
Attempting to restrict that communication is similarly broadly defined. The simple act of forcing federal employees to sign an overly restrictive NDA is an attempt to block congressional communication and is null and void if the NDA does not ensure the right to speak to Congress.
So any White House staffer involved in attempts to enforce NDAs that have the effect of blocking communications with Congress could be subject to a salary cutoff.
Thankfully, there is a relatively easy way to enforce this obscure law. Any member of Congress can recognize that appropriations law forbids paying a salary to any White House staffer who gags another staffer’s right to communicate with Congress. This member can request that the Government Accountability Office analyze whether the law was violated. The GAO, a legislative entity in part entrusted to investigative potential violations of appropriations law, would review the statute, compare it with the White House staffer’s actions and issue a report on its findings. Any such report would probably conclude, as we have, that the Trump administration’s NDAs plainly interfere with congressional communications and, thus, that paying salaries of White House aides involved in the NDAs is a violation of the law.
And any member could use the GAO’s determination as a rationale to introduce a bill enforcing the appropriations law. In the process, the member could name and shame all the White House actors who violated the law, while threatening their salaries as a penalty.
Historically, this congressional authority has been dormant. The process to enforce it could be lengthy and cumbersome. And even if the House passed legislation to strip a White House aide’s pay, the Senate almost certainly wouldn’t, nor would President Trump be likely to sign it. But the idea still puts a cloud of personal liability and potential penalties over the heads of government officials used to immunity from accountability. When whistleblower champions have threatened to seek enforcement, agency officials have blinked. Few bureaucrats want to risk a salary shutdown. Even a congressional floor debate over whether to enforce GAO findings would put an unwelcome spotlight on government managers who like to stay in the shadows.
Beyond officially recognizing the unenforceability of these NDAs, punishing those who attempt to enforce them would surely reduce the chilling effect of the NDAs and potentially curb the practice. That would mean more openness, transparency and communication from the White House to the public and to its financial overseers in Congress.