Use of Arbitration Agreement to Silence Omarosa

Omarosa Manigault Newman, a former Trump White House aide, just published a tell-all book and the Trump campaign filed an arbitration action alleging that she broke a 2016 confidentiality agreement.

According to this Washington Post article, “Initially, [White House Counsel Donald] McGahn told Trump he would not draft or give aides the [non-disclosure agreements] because they were not enforceable, White House officials said.  But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.”

You might be interested to read this Washington Post article by Mark S. Zaid, identified as “a Washington lawyer who regularly handles classified matters, including representation of national security whistleblowers.”  He writes:

[Non-disclosure agreements] for government workers, when they go beyond prohibiting the disclosure of classified information, are unconstitutional on their face.  I know, because I have litigated more pre-publication-review classification challenges against the government during the past 25 years than any other attorney.  For decades, courts have made it clear that the government may not censor unclassified material, “contractually or otherwise.”  Legal challenges during the 1970s and 1980s against the CIA settled the question that the government has no legitimate interest under the First Amendment in censoring unclassified information.

 . . .

I have reviewed one document that is purportedly a version of the White House NDA.  It appeared to be nothing more than a Trump Organization document that was modified to apply to White House staff — in fact, it still had a provision that in any litigated dispute, the parties agreed that New York state law would apply, language that no standard federal document would ever have used.

Ms. Manigault Newman signed a NDA when she worked for the Trump campaign but not when she was a White House employee, so Mr. Zaid’s analysis may not apply to this situation.  However, this article cites legal experts suggesting that she has a strong defense against enforcement of the NDA for several reasons, including that in this context, the Trump Organization might be considered as a state actor, subject to the First Amendment.

I don’t know the details of the agreement, whether it purports to apply to conduct before and/or after she started serving as a government official, whether an arbitrator or the court would decide about the enforceability of this agreement, etc.   Some of our arbitration wizards may want to weigh in on this

In any case, you might enjoy reading Mr. Zaid’s article.


One thought on “Use of Arbitration Agreement to Silence Omarosa”

  1. Thanks to Ben Davis for pointing to this article: Judge says Trump campaign screwed up on wording of confidentiality agreements.

    The article reads in part:

    “A Manhattan judge issued a ruling on Thursday that thwarted the Trump campaign’s attempts to keep a lawsuit out of open court, with potential implications for the looming battle over fired Trump aide Omarosa Manigault Newman’s slow-motion revelations of her experiences in the Trump campaign and White House.

    “The decision came in a lawsuit filed by Jessica Denson, a former campaign staffer who filed a complaint last November that alleged she was subjected to “harassment and sexual discrimination” while she worked on Trump’s White House bid in 2016. Lawyers for the Trump campaign tried to force the case into private arbitration based on an agreement signed by staffers that included nondisclosure and nondisparagement provisions. In her decision, Judge Arlene Bluth of New York State Supreme Court disclosed flaws in the wording of the agreement that she said limited its scope.

    “Bluth’s ruling became public today when Denson tweeted a copy of the order. It is notable because Denson is representing herself and still defeated the Trump campaign’s lawyers. The judge’s decision represents a rare victory for a pro se litigant, the legal term for a person proceeding in court on their own behalf against a party represented by licensed attorneys. Denson, a young actress, declined to comment on this story.”

    This case provides a good lesson in how NOT to draft an arbitration agreement.

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