Donald Trump wants us to hear him. And hear him. And hear him. This is a man who, as president of the United States, regularly calls into Fox News programs to launch into long and rambling monologues, who has sent as many as 200 tweets and retweets in a single day, and who famously craves the adoring throngs at his rallies.
Yet as much as Trump demands the spotlight, he is obsessed with controlling what it illuminates. When Trump was a private citizen, this tension manifested in numerous and sometimes bizarre ways, including his prolific use of nondisclosure agreements in his business and personal lives, calling journalists under assumed names to plant flattering stories about “Mr. Trump,” and showing up at public events to claim credit for charitable donations he had never made.
When Trump became president, his unceasing need for glowing publicity became considerably more urgent for him, and more dangerous for the rest of us. It became more urgent because the stakes for Trump were both higher and more measurable; he found himself facing daily approval polls, potential (and actual) impeachment, and an eventual reelection contest. And it became much more perilous to the American people for two reasons. First, the secrets that Trump may wish to keep now involve much more than his personal or business affairs. Rather, they could pertain to virtually any aspect of the federal government’s operations, particularly information that might place those operations, or the president himself, in a negative light. Second, Trump—like a kid with a sugar habit and no self-control left alone in a candy store—can now tap the government’s immense resources, including the Department of Justice and the White House Counsel’s Office, to indulge his desires to hide or manipulate information.
Of course, Trump did not invent government secrecy or its abuses. But Trump has doubled down on the excesses of past administrations and created new ones to boot. His administration’s use of nondisclosure agreements exemplifies this phenomenon. Although previous administrations used NDAs, they did so solely with respect to classified information. To be sure, even national-security NDAs can raise serious free-speech concerns. Indeed, the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University are currently challenging the system of “prepublication review”—which bars “millions of intelligence-agency employees and military personnel from publishing or speaking about topics related to their government service without first obtaining government approval”—in federal court. Yet the Trump administration has pushed the envelope further still, requiring White House officials to sign broad NDAs not limited to national-security information.
Earlier this week, the Justice Department took things to a nearly farcical level, filing suit in federal court on behalf of the United States against Stephanie Winston Wolkoff for violating an NDA that she signed in 2017 in her capacity as an unpaid “trusted advisor” to Melania Trump. The agreement barred Wolkoff, among other things, from disclosing her “work with FLOTUS and [the Office of the First Lady] . . . to any person or entity to whom disclosure has not been authorized in writing by FLOTUS, the Chief of Staff to the First Lady or the Office of the White House Counsel.” According to the Justice Department, the agreement binds Wolkoff indefinitely, and she violated it by publishing her recent “tell-all” book, Melania and Me: The Rise and Fall of My Friendship With the First Lady, without written authorization. The department has asked the court to place any “monies, gains, profits, royalties and other advantages” that Wolkoff, “her agents . . . or others acting on her behalf” have derived or may derive from the book’s publication, “including any movie rights,” into a “constructive trust for the benefit of the United States.”
This lawsuit has all the markers of Trumpian excess with respect to secrecy. It takes a device that previous administrations used—an NDA—and wields it in a newly aggressive way. Rather than employing the NDA to protect classified information, the Justice Department is using it to punish Wolkoff for revealing tidbits such as the fact that the first lady once said, “Who gives a fuck about the [White House] Christmas stuff and decorations?”
The department also borrows, grandiosely, from arguments that presidents typically make when they invoke executive privilege to shield presidential advisers from testifying before Congress or the courts. The complaint explains, for example, that broken confidences with staffers impede the first lady’s “essential role . . . in supporting and facilitating the President’s role as head of state and principal officer over the executive branch.” Although administrations have long used executive privilege to excess, the department goes further still, repurposing the doctrine’s underlying logic to punish a volunteer assistant to the first lady for writing a book.
Despite these alarming developments, all is not lost for free speech and government transparency. When Trump ascended to the presidency, he gained more than new resources and incentives to manipulate or suppress information. As a state actor, he also acquired the burden of operating under the First Amendment. There is indeed ample First Amendment precedent under which the court can and should find Wolkoff’s agreement unenforceable. As a foundational matter, the Supreme Court has, time and again, deemed speech about government officials and public figures at the very heart of the First Amendment, extolling our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Justice Department’s own arguments about the centrality of the first lady’s office to the presidency place Wolkoff’s revelations squarely at the First Amendment’s core. More so, presidents, including this one, routinely rely on their spouses for political advantage. Through everything from policy initiatives to, yes, those darned Christmas decorations, first ladies have traditionally served as political assets to presidents. This reality, too, places first spouses’ words and activities well within the realm of public debate that the Supreme Court deems central to the First Amendment.
Because First Amendment protections serve the public as well as the speaker, they cannot simply be signed away through an employment contract, whether for a paid or volunteer position. The Supreme Court has repeatedly explained that public employers do not have an unlimited right to fire or otherwise discipline employees for speaking, as citizens, on matters of public concern. The Court has imposed such limits partly because “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”
The agreement that the Justice Department seeks to enforce here extends considerably further than workplace discipline. It purports to subject the signer to restraints on speech about their White House employment for at least the length of the president’s term, and possibly for the rest of the signer’s life. Courts have only ever upheld such agreements, and allowed constructive trusts to be imposed as remedies for their violation, in the context of national-security information. As noted above, even those decisions are controversial, and such NDAs are currently facing a new set of legal challenges.
The Trump family, in short, simply cannot have it both ways. They cannot serve as America’s first family, with all the fame, power, and resources that entails, and still control their image with the domineering tactics that they employed as private citizens. For better or worse, the goings-on of Donald and Melania Trump are now America’s business. And in this business, the founding document is the Constitution.