The Department of Justice, the pre-eminent law firm in the country, has sued Stephanie Winston Wolkoff for breach of a confidentiality agreement. Winston Wolkoff signed the Non-Disclosure Agreement when she worked for a time at the White House. Later, this year, she published a “tell-all” book about Melania Trump. Ms. Winston Wolkoff is a former friend to Melania Trump.
Pres. Trump has required all White House employees to sign a NDA, as was his practice in private business. Someone needs to tell Pres. Trump he is not in private business. Non-Disclosure Agreements apply to confidential information which an employee acquires while employed by a private business. Under the laws in most states, if the employer satisfies such as criteria as: 1) the information is difficult to acquire or develop, 2) the information is private, and 3) the information has some value, then the private business can require that such information be kept confidential.
Working for the federal government is a completely different animal. The “information” any federal worker comes across belongs to the public, already. A President, who holds office for only 4-8 years, cannot privatize property – information – which belongs to the government, or or to the public. No one has ever tried this dubious tactic. So there is no caselaw on the topic. But, consider the Freedom of Information Act. That statute entitles any member of the public to any information which is not classified. The FOIA has some limited exceptions, but generally, all unclassified information is available for the asking.
There are also some two dozen various federal whistle blower statues which specifically provide a federal worker cannot be subject to reprisal for reporting in good faith unlawful actions by a federal agency. That law applies to former workers. it applies to even potentially unlawful actions by a federal employer.These laws are very broad.
But, the biggest hurdle for these private business NDA’s is the First Amendment. The First Amendent does not apply to private employers. Pres. Trump could use these NDA’s in his business with no fear of free speech rights. A private employer can insist that a worker not discuss matters of public importance. But, the First Amendment applies to every state government and to the federal government. No federal or state employer can prevent an employee from discussing publicly any matter of public import. None. It is not even a close question.
It is silly really to require NDA’s of federal employees. It is even sillier for DOJ to get involved. For DOJ to embark on a lawsuit against a former employee for her “tell all” book approaches the bizarre. Surely, DOJ has more meritorious lawsuits than dubious violations of a dubious NDA. See NBC news report here and Politico news report here. This at a “law firm” that largely hires only from so-called top tier law schools. I expect a team of DOJ lawyers are right now feeling like the time their mommy made them take their little brother to the movies.