IS BANNON NON-DISCLOSURE AGREEMENT ENFORCEABLE?

In the wake of the release of excerpts from Michael Wolff’s explosive new book “Fire and Fury: Inside the Trump White House”,  President Trump’s lawyers have sent a cease and desist letter to former White House Chief Strategist and now chief leaker Steve Bannon.  The letter claims that Bannon’s disclosures to Wolff violate a non-disclosure agreement Bannon signed when he came on board the Trump campaign.

I have a few thoughts on this.  First, I don’t understand why these communications are called “cease and desist” letters.  That’s redundant.

Second, I’m not sure the NDA is even enforceable.  Here’s a piece from the Daily Beast that ran more than a year ago that addresses this point.  So the President’s threat to sue Bannon may be hollow. And of course, that would not be the first time that happened.    

Third, and on a somewhat related point, there is a First Amendment consideration here.  While courts frequently enforce private contracts that limit parties’ ability to speak, because private parties can write contract terms as they see fit, there’s no state action that would implicate the First Amendment.  But in this case, the country’s chief executive officer would be the plaintiff.   And that makes the public/private line blurry at a minimum.

Fourth, courts can refuse to enforce contracts, or contractual clauses, that violate “public policy.”   That is an admittedly amorphous standard, but one that courts enforce as needed.  And I can’t help but wonder if a court would apply it here.  The overriding policy question is whether any public official should be able to compel public employees in advance to keep their mouths shut about public business?  There are laws on the books that prohibit disclosure of classified information, so I’m not suggesting information about national security is fair game.  But I am talking about information disclosing how our government works (or maybe doesn’t work).  Public officials work for the public.  And I for one was never consulted about any NDA.

And I understand the counter argument – a public official needs to speak freely with trusted advisors and has a right to expect those conversations to stay private.  So let’s be clear. I’m not saying that Steve Bannon, Reince Priebus or anyone else in the White House could be forced to disclose those conversations (until they appear before a grand jury). I’m saying that they shouldn’t be contractually bound not to voluntarily share that information if they see fit.

And how does a President guard against leaks?  Nothing is fool proof, but maybe surrounding yourself with decent, honorable people and treating them well might be a start.  Converting the White House to an island of misfit, backstabbing, unqualified sycophants may, in retrospect, have not been such a great idea.