Presidential NDAs violate public trust
Between 2009 and 2011, I briefed almost every political appointee to enter government at the start of their tenure on what it means to be a government employee, and the responsibilities that came with the office. I had one overriding message: Whatever you came into government to do — whether to work on health care or foreign policy or climate change — before you could do any of that, you have to commit to serve the public. The reasoning was simple. Public office is a public trust, and unless the public trusts you to be working on their behalf, government as an enterprise will fail. While I was the one giving these talks, either to hundreds of federal agency appointees in the lobby of the Ronald Reagan Building or to each new White House staffer in small gatherings, the message didn't originate with me. The idea came from our Founding Fathers, and the decision to prioritize it in the past administration came from the president. That's why it has been disturbing to have witnessed for the past year a complete upending of this concept by the current holder of that office. This week's revelation by The Washington Post's Ruth Marcus that President Donald Trump had White House staff sign a nondisclosure agreement compelling their silence long after their government service is over, ostensibly to be enforceable by Trump personally, is the latest example. 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. With the plethora of scandals coming out of this White House, it can be hard to process them all. It's important not to treat the latest revelations about the NDA or any other scandal as just one more item on a list, forgotten after the next staffing fiasco or outrageous tweet. Taken together, Trump's actions add up to something more: a president who isn't committed to the fundamental principle that government exists to serve the public. First, there's Trump's expectation that every federal employee works for him personally. That explains his disbelief that Attorney General Jeff Sessions would recuse himself from the Russia investigation rather than "totally protect" Trump. It explains why he asked in various ways for personal loyalty from James B. Comey, Rod J. Rosenstein and Andrew McCabe, and has removed two of them (so far) when he felt their loyalty was insufficient. And it's what is so misguided about an NDA that, aside from imposing an outrageous lifetime blanket omerta on public servants, purports to be enforceable ( it's not) by Trump personally as a private citizen after leaving office.
Second, there's Trump's view that he alone can wield the powers of government however he chooses. Or, as he declared recently, that he has "an absolute right to do what I want to do with the Justice Department" ( he doesn't). Consider also his statement on aluminum and steel tariffs: "I'm sticking with 10 and 25 [percent] initially. I'll have a right to go up or down depending on the country, and I'll have a right to drop out countries or add countries." You would never know from that statement that there is a Congress or an executive branch or any process designed to take public input.
Third, there's his campaign to undermine any form of public accountability: The media are fake; the voters are engaging in fraud; the special counsel is conflicted; the judges are biased; the potential witnesses against him are liars.
And last, there's the way Trump uses his public office to enrich himself and his kin, whether by refusing to divest his businesses and allowing them to serve as a conduit for alleged bribes, or using his platform as head of state to hawk his golf properties in official speeches.
When you take all of this together, you don't just have an attack on the notion that public office is a public trust, you have an attack on the idea of liberal democracy itself — that the public elects officeholders to carry out the public's business, who are constrained by a set of checks and balances to ensure they don't subvert that mission.
As the democracy expert Yascha Mounk put it recently, it's for these reasons that "the Founding Fathers insisted that the primary duty of American citizens should be to a set of ideas and institutions, not to a particular person," and that "It is this fundamental tradition that Trump — acting more like an Old World monarch who is used to demanding fealty from his subjects — [has] attack[ed]."
I was asked on occasion when I served in the White House Counsel's Office if staff should be required to sign NDAs. My response always contained some version of this: We work for the public.
If Trump can't see that, Congress and his lawyers should remind him.