The Trump Administration Wants to Frighten Would-Be Whistleblowers
· The Atlantic
Early in Donald Trump’s second term in office, the White House declared itself “the most transparent administration in history.” The federal government has continued to insist on this slogan, even as it has barred journalists from the Pentagon, administered polygraph tests in an effort to ferret out leakers, and fired independent inspectors general tasked with hunting down corruption and mismanagement. Now the administration has announced yet another effort to stem the free flow of information—a plan that would push all federal workers to sign a nondisclosure agreement.
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Last week, the U.S. Office of Personnel Management published a draft proposal for rolling out NDAs across the executive branch. The NDAs would ostensibly forbid federal workers from sharing “non-public, confidential, or proprietary information” outside the government, including with the press. Exactly what constitutes such information remains unclear, as does the proposal’s legal validity. The draft NDA itself acknowledges that the administration cannot go beyond the restrictions of existing law. And to the extent that the government seeks to add new constraints anyway, the proposed NDA would be a clear violation of First Amendment protections. Legal or not, though, the NDA will likely further intimidate federal workers, many of whom are already demoralized by the Trump administration’s efforts to torment the civil service and drive government employees to quit.
“As I see it, the goal of the NDA is to chill employees who would otherwise whistleblow on unlawful activity or mismanagement,” Nick Bednar, a law professor at the University of Minnesota who studies the civil service, told me. The proposal, in his view, is “an additional threat on top of dozens of other threats” to federal workers who have already suffered from mass layoffs and reductions in civil-service protections.
The proposal frames the draft NDA as a necessary response to recent “unauthorized disclosures” to the press, pointing to reporting by The New York Times and The Washington Post about the U.S. raid on Venezuelan President Nicolás Maduro, which it claims could have endangered U.S. forces if published before Maduro’s capture. (The Times’ executive editor, Joe Kahn, has said that the paper did not receive operation details ahead of time.) It also cites the leak of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization—a strange choice, given that this leak involved a branch of government not under the OPM’s control. If the proposed rule were adopted, agencies across the government would have the option of requiring their employees to sign the agreement as “a certification that the employee understands and agrees to comply with applicable nondisclosure requirements associated with Federal service.” But, the rule emphasizes, “the proposed NDA does not create new substantive restrictions on employee speech or disclosure rights.” Even on its own terms, then, the NDA is largely redundant.
[Conor Friedersdorf: What is Donald Trump hiding?]
Until now, the government has never implemented a blanket NDA like what Trump is proposing. This is, in part, because it has little reason to do so: The United States already has plenty of laws on the books governing what information can and can’t be disclosed. Federal employees who work with classified information already sign a binding agreement, known as SF-312, to never share sensitive material, and anyone who reveals such information can be subject to criminal prosecution. Outside the realm of national security, other laws prohibit federal workers from sharing material such as trade secrets and personal information contained in government databases. These restrictions are balanced by statutory whistleblower protections, which exist to safeguard government employees’ ability to reveal misconduct, including to the press and Congress, in an effort to bring before the public information about government abuse that might otherwise remain hidden.
Apparently, however, the right balance has not been struck. Trump has long leaned on NDAs as a tool to prevent unflattering information from becoming public. Prior to his presidency, he pushed NDAs on Trump Organization employees, Miss Universe contestants, business partners, family members, the adult-film actor Stormy Daniels, campaign employees and volunteers, and, according to the Associated Press, a manufacturer of red MAGA hats. During his first term, beset by leaks to the press, Trump demanded that senior White House staff be required to sign the agreements. In 2020, the Justice Department sued Stephanie Winston Wolkoff, a former aide to Melania Trump, seeking to seize the profits from Wolkoff’s book on the grounds that an NDA prohibited her from speaking publicly about her time with the first lady. (The Biden administration later dropped the case.)
This love affair with NDAs has continued into the second Trump administration—especially as, once again, the government struggles to prevent journalists from uncovering some of what is going on behind closed doors. Last year, CNN reported, Defense Secretary Pete Hegseth began requiring that officials sign an NDA before accessing certain nonclassified information.
Supposedly, the new NDA would be voluntary, but the proposal states that workers could be fired and barred from future government employment if they refused to sign. And for those who do sign, the draft NDA warns that breaking the agreement could result in discipline, firing, and ominously unspecified “civil or criminal penalties”—although there is no broad criminal prohibition against sharing unclassified information. The only statute that the Office of Personnel Management cites has to do with destruction or theft of government material, not leaks of it. “That provision has no obvious relevance or application to an NDA seeking to restrict unauthorized dissemination of unclassified information,” Bradley P. Moss, an attorney who specializes in national-security law and federal employment law, explained to me in an email. Perhaps the OPM was simply sloppy in throwing the draft together. Or perhaps the idea was just to sound threatening and make a bet that few federal workers would want to risk being prosecuted.
[Orly Lobel: Trump’s extreme NDAs]
Moss, who described the draft NDA as “ridiculous on its face,” found one aspect particularly troubling: The agreement purports to bind government workers from sharing information not just during their employment, but even after they leave federal service. This is “unequivocally unlawful,” Moss said. Under well-established law, the First Amendment limits the government’s ability to block former employees from sharing unclassified information. (This is the argument that Wolkoff was making before her case was dismissed.) As an employer, the government retains some power to tell its workers what they can and can’t say, but it cannot force people to sign away their rights to free speech even after they leave public service just because that speech might be annoying or inconvenient. If the OPM goes forward with the draft NDA as currently written, the administration would almost certainly face a wave of court challenges under the First Amendment.
Then again, Trump is no stranger to NDAs that don’t hold up in court. According to The New York Times, White House lawyers explained to Trump during his first term that the NDAs he wanted aides to sign would be impossible to enforce. Years later, in 2021, a federal judge in New York ruled that the NDAs signed by Trump-campaign workers in 2016 were so broad as to be legally void. The effect, the judge wrote, was to “chill the speech” of campaign employees “about matters of public interest.” Over the next year, two additional private arbitrators found the campaign’s NDAs to be unlawfully broad. The Trump family’s effort to invoke an NDA to block publication of a memoir by Mary Trump, the president’s niece, likewise failed. Speaking with The Washington Post, Mary Trump characterized her uncle’s legal strategy as wielding “his power, his position and his money and his apparently endless supply of lawyers to run out the clock” and “outspend people who can’t afford it.” In that sense, even if those previous NDAs were legally worthless, they achieved their true purpose of extracting pain. Now Trump’s administration is applying that same logic to silence public servants.
The NDA proposal is only in its beginning stages. Under the typical process for adopting regulations, the OPM will allow members of the public to submit their thoughts on the plan. Perhaps the administration will soften the language of the draft NDA as the process goes on in order to avoid the risk of litigation. Either way, the message from Trump to federal workers is clear: Shut up, or else.