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President Trump speaks during a Cabinet meeting this month at the White House in Washington. (Evan Vucci/AP)
Since the revelation that President Trump (or someone acting on his behalf) compelled senior staff to sign non-disclosure agreements — in essence, preventing them from speaking about their White House service — much of the focus, and rightly so, has been on the improper presidential attempt to stomp on government employees’ First Amendment rights and attempt to prevent employees from speaking to congressional oversight committees (i.e., a violation of the separation of powers). Former White House ethics counsel Norman Eisen explains, “The courts have long recognized that apart from classified information, government employees have a First Amendment right to speak.” He explains, “No president has attempted before to secure the kind of sweeping hush agreements that are alleged here because they are contrary to that principle.”
There are other issues at play, including one several Right Turn readers have asked: Did these employees, by giving something of value to Trump, in essence illegally “pay” for their government jobs? Eisen thinks that there are plenty of problems aside from the First Amendment one. “The NDAs as described in the press also appear to run afoul of many other laws ranging from those protecting whistleblowers to ones forbidding officials from demanding anything of value in exchange for government jobs,” he says.
If candidates for administration jobs wrote out a $1,000 check to Trump to get hired, few would doubt that is anything but a bribe. Likewise, if Trump demanded $1,000 to hire someone, we’d all agree that amounted to soliciting a bribe. So, is the exchange of an NDA — something plainly of value to Trump — somehow different?
Constitutional scholar Larry Tribe doesn’t think that there’s a legal difference. “I’ve argued and believe that the NDAs Trump might have extracted from executive branch employees (if that story proves accurate) are a form of extortion in terms of what they extract from government employees and have the stench of bribery as well,” he tells me. “I also see them as akin to the domestic emoluments a president is flatly forbidden by [Article] II from receiving from any state or from any component of the federal government because, in effect, they add to the president’s congressionally fixed compensation something that amounts to a personal benefit contributed to him by federal employees as a condition of their jobs.” He explains that even if “financial supplements to Trump’s White House salary … aren’t in the form of cash but instead take the form of reputation insurance or enhancement shouldn’t obscure the principle at stake.” He adds that these concerns are, of course, in addition to “First Amendment issues with enforcing the NDAs through prior restraints.”
Eisen points to the federal bribery statute (18 U.S.C. 201) as a statutory tripwire that Trump stumbled across. He says it is also clear that this is a personal concession to Trump, not to the government (e.g. a policy that says “thou shalt not leak”). “The thing that makes these NDAs, at least as described, different is that they continue to vest rights personally in the president even after he leaves office,” he says. “That shows that this is not a concession being made to the government in exchange for a job, but a personal one being made to the man who occupies the office. The president couldn’t of course demand a monetary payment from someone in order to be employed, and neither should he be able to do this.”
No one is seriously suggesting that a federal prosecutor go after the senior staffers who were foolish enough to sign these things, but Trump is a different matter. It’s hard to imagine that someone passed these out without Trump’s knowledge, and it’s even harder to believe that others (lawyers, staffers) didn’t assist in procuring the NDAs.
The good news is that the NDAs have already been requested, albeit just by Democrats. Moreover, Citizens for Responsibility and Ethics in Washington (which Eisen represents in litigation) has already filed a Freedom of Information Act request for the NDAs and any documents relating to them. To the extent the special counsel has come across these in the course of his investigation, he, too, might demand that they be turned over. (For example, was any employee pressured not to be forthcoming with investigators or Congress because he/she signed an NDA? If so, that would be another instance of alleged obstruction of justice.)
Former director of the Office of Government Ethics Walter Shaub says simply that “you can’t go around trading things of value for federal appointments.” What’s apparent here is that Trump has no idea that working for the American people is different from working for his family operation. Ian Bassin, former associate White House counsel and now executive director of Protect Democracy, commenting on the revelation that NDAs were used in the White House, writes: “It’s not just a matter of law (though government does restrict disclosure of some confidential or classified information, these NDAs go far beyond those rules); it’s about principle, and what these NDAs signify about the president’s view of government work. At root, it has become clear that Trump doesn’t view public office as a public trust, but rather as a personal fiefdom, to be controlled by whomever is declared the winner of an election.” Unfortunately, Trump never understood what actual public service is about, and no one around him seems willing to counsel him or act to restrain him. At the very least, you’d think that there would be someone other than Mark Corallo (former spokesman for Trump’s legal team) who’d quit on ethical grounds. Alas, Trump has selected people whose ethical standards are as low as his own.
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Source : https://www.washingtonpost.com/blogs/right-turn/wp/2018/03/21/trump-senior-staff-who-signed-non-disclosure-agreements-may-have-broken-the-law/