Court voids Trump campaign's non-disclosure agreement

A federal judge ruled Tuesday that a broad non-disclosure agreement that Donald Trump’s 2016 presidential campaign required employees to sign is unenforceable.

U.S. District Court Judge Paul Gardephe’s ruling generally steered clear of the constitutional issues presented by such agreements in the context of political campaigns. Instead, the judge — an appointee of President George W. Bush — said the sweeping, boilerplate language the campaign compelled employees to sign was so vague that the agreement was invalid under New York contract law.

“As to the scope of the provision, it is — as a practical matter —unlimited. ... Accordingly, Campaign employees are not free to speak about anything concerning the Campaign,” wrote Gardephe. “The non-disclosure provision is thus much broader than what the Campaign asserts is necessary to protect its legitimate interests, and, therefore, is not reasonable.”

Gardephe’s 36-page decision said a non-disparagement clause in the agreement was similarly flawed.

“The Campaign’s past efforts to enforce the non-disclosure and non-disparagement provisions demonstrate that it is not operating in good faith to protect what it has identified as legitimate interests,” the judge added. “The evidence before the Court instead demonstrates that the Campaign has repeatedly sought to enforce the non-disclosure and non-disparagement provisions to suppress speech that it finds detrimental to its interests.”

Gardephe issued the ruling in a case brought by Jessica Denson, a Hispanic outreach director for Trump in 2016 who accused the campaign of sex discrimination in separate litigation.

At one point, the campaign persuaded an arbitrator to issue a $50,000 award against Denson for violating the agreement, but that award was later overturned.

Denson celebrated the latest ruling, saying it dealt a death blow to a tactic Trump has long wielded to control his image.

“I’m overjoyed,” Denson told POLITICO. “This president … former president spent all four years aspiring to autocracy while claiming that he was champion of freedom and free speech. ... There’s many people out there who have seen cases like mine and were terrified to speak out.”

For decades, Trump required such secrecy agreements of his personal employees and staff in his companies. When he jumped into the presidential race in 2016, his lawyers continued to demand NDAs that seemed modeled on those he used previously in his personal and business affairs.

The practice continued into Trump’s presidency, despite warnings from First Amendment advocates that it was unconstitutional to demand that public employees swear an oath of secrecy. Precisely who at the White House was required to sign such agreements and what they covered remains something of a mystery.

The Justice Department joined in the secrecy drive last year by filing a lawsuit against Stephanie Winston Wolkoff, a former volunteer adviser to first lady Melania Trump, over a tell-all book Winston Wolkoff wrote. Some legal experts questioned the basis for the suit, which was based on an NDA she had signed. Days after President Joe Biden’s inauguration, the Justice Department dropped the case.

Denson said she is certain that such agreements helped mute criticism of Trump during his 2016 presidential race and through his four years in office.

“Just the terms of the NDA were wildly restricting and it completely stifled public debate, truthful public debate about the Trump campaign and presidency, so this is a massive victory,” the former aide said. “NDAs like this are part of the reason why we ended up with a Donald Trump candidacy and presidency in the first place.”

An adviser to the former president expressed disagreement with the ruling and said Trump’s attorneys are considering their options.

“We believe the court reached the wrong decision and President Trump’s lawyers are examining all potential appeals,” said the aide, who asked not to be identified.

Technically, Gardephe’s decision applies only to Denson, barring the campaign from enforcing the NDA against her. But her attorneys said Tuesday they think the decision effectively nullifies all the NDAs the Trump campaign has issued.

“The court ruled point by point, almost entirely in our favor,” said Denson's New York-based lawyer, David Bowles.

Denson's suit was also backed by Protect Democracy, an advocacy organization which formed in opposition to Trump but bills itself as non-partisan and anti-authoritarian. An attorney with the group, John Langford, said the court ruling transcends Trump and serves as a warning to any campaign considering any similar effort to gag its staffers.

“From our perspective, it’s really not about politics,” Langford said. “No one should have to give up their free speech rights or swear allegiance to a candidate forever just to get a job with or volunteer on a campaign.”

The court decision does not foreclose the use of narrower non-disclosure agreements to protect sensitive campaign information, which the judge said might include polling data and fundraising strategies.

The Trump campaign asked Gardephe to edit the provisions if he found them unenforceable as written, but he declined.