Trump: Omarosa broke nondisclosure accord

The Trump campaign, a private entity, filed an arbitration against Omarosa Manigault Newman on Tuesday for breaching her 2016 confidentiality agreement with Donald Trump for President, Inc. His claim, The Washington Post reported, stems from a signed nondisclosure agreement abdicating her right to speak poorly of her then-employer, Trump, or about the goings-on she witnessed inside the White House. It's a sound and unsurprising legal strategy for Trump, who would like to treat the NDA as an agreement between two private parties – the campaign organization and Manigault Newman – instead of one that posits the federal government on either side of the contract. The law restricts the government from abridging people's right to free speech. It does not, in most situations, curb private actors from creating private contracts. So, as long as the White House or Trump, in his official capacity as the President, were not contracting parties, Trump may avoid an onslaught of legal obstacles. But many legal experts, such as University of Florida professor Mark Fenster, agree, that the agreement should be treated as if it were made between Manigault Newman and the government. There came a point where Manigault Newman transitioned from working with the Trump campaign to working for the White House, where she was paid by the federal government, according to Fester. "She was no longer working for a private entity or person. It's not the Trump Organization or NBC or the campaign that's trying to enforce the NDA, it's the U.S. government," he said. "Trump views it as the same thing, but she wasn't working for him, she was working for the White House." Legally speaking, that makes all the difference. A non-private contract would also be troubling from a First Amendment perspective, according to Heidi Kitrosser, professor at the University of Minnesota Law School, who called it "clearly unconstitutional." A bedrock principle of the United States Constitution's First Amendment is freedom from prior restraint, prohibiting governmental bans on expression as "essential to a free society." On rare occasion, an exception has been invoked for matters in time of war or involving national security. The NDA would constitute a restriction on matters of the utmost public importance, according to Kitrosser. "It would be a blanket prior restraint, one that goes well beyond a narrowly tailored way of keeping, say, sensitive national security information out of the public eye. Such an agreement – if considered one between the government and a private person – would go well beyond anything that I could imagine any court approving." There is also an existing body of law on the state-action doctrine – when something normally done by a private actor is effectively the work of the state. It would be an unusual, though not implausible argument because, as Kitrosser said, "This is an unusual president." He is trying to not only silence Manigault Newman but also prevent her from speaking about things he did as the President of the United States of America, she said.