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Trump Uses NDAs to Silence Critics. Democracy Demands Free Speech


Voters should demand that it be investigated whether the politicians who ask for their support are silencing their own employees.

Standing in the atrium of Trump Tower in New York City in late May after he was convicted, former President Donald Trump said the following about gag orders, better known as nondisclosure agreements or confidentiality provisions:

“So we have an NDA, a nondisclosure agreement. It’s a big deal, an NDA. Totally honorable, totally fine, totally accepted. Everybody has them. Every company has NDAs. … And most of the people in this room have NDAs with their companies. … Totally legal, totally customary. Everybody has them.”

Trump is not entirely wrong. Researchers estimate that at least a third of all American workers are bound by nondisclosure agreements, though the number is likely much higher. We sign them on our first day on the job; we sign them as part of a consulting agreement; we sign them to do volunteer work; we sign them on our way out the door in exchange for a severance package or a letter of recommendation or a severance package; we sign them as part of a settlement agreement.

What’s worse, too many of us aren’t even aware of what we’re signing up to and the rights we’re giving up. That’s because these silencing mechanisms are buried deep within onboarding documents, employment agreements, or separation agreements. They’re wrapped in legalese to convince us that we’re simply obligated not to release company information.

But these agreements increasingly define proprietary information not just as trade secrets, but as all sorts of illegal and toxic behavior, from sexual misconduct to discrimination and retaliation.

Trump has a long history of silencing his critics

Trump’s own history with gag orders goes back decades, long before he entered the political arena. He used them to silence both of his ex-wives. He used them against a former Miss Universe contestant. He used them during his time as head of the Trump Organization.

As star of “The Apprentice,” he was under nondisclosure agreements that, according to a former producer, covered up deeply misogynistic, sexist and racist behavior, including Trump’s alleged tendency to use the N-word to refer to a black contestant.

He later used them during his 2016 presidential campaign, during his presidential transition, and in the White House. And, as we now know, he used them to cover up an affair with a porn actress and a Playboy model.

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Trump’s 2016 campaign NDAs are particularly telling. They prevented an employee from smearing Trump forever and disclosing anything that “Mr. Trump insists remains private or confidential.”

An arbitrator ruled they were so broad that another employee “could never say anything even remotely critical of Mr. Trump, his family, or his family members’ businesses for the rest of her life.”

Ultimately, a judge ruled that such nondisclosure agreements were unlawful, but only after years and likely tens of thousands of dollars had been wasted litigating over their validity.

These nondisclosure agreements also foresaw the myriad ways in which Trump would use his power as president to undermine our country’s democratic norms, including by hiding information that he and his allies deemed personally embarrassing or damaging.

NDAs are being used as a weapon by Democrats and Republicans

The use of nondisclosure agreements by powerful elected officials is a bipartisan issue.

Take self-progressive New Jersey Gov. Phil Murphy, who has chaired both the National Governors Association and the Democratic Governors Association. Murphy’s use of NDAs in his 2016 campaign was so draconian that it barred employees, including one of ours, from disclosing “any knowledge or information of any kind” they had obtained while providing services to the campaign.

What information was Murphy so keen to hide? This particular edict was sent to one of us in the midst of a lawsuit filed against Murphy’s campaign by a former volunteer who alleged she had been sexually abused by one of his senior aides. The purpose was to prevent the release of information that could have helped the young survivor.

Only the threat of a legislative task force, countless op-eds in New Jersey’s largest newspaper, and a lawsuit against Murphy were able to free campaign workers from the gag orders. The bans were intended to protect not only confidential campaign information like polls and research, but also anything that could be embarrassing to the governor or those close to him, such as allegations of misogyny, sexual misconduct, and toxicity.

Why is the use of these gag orders by our elected officials important? It portends other anti-democratic behavior, excessive secrecy for secrecy’s sake. For example, Trump boasted that he would not be a dictator until “day one” of his presidency.

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Chillingly, Michelle Goldberg of The New York Times recently reported that “The Apprentice,” an acclaimed film purporting to tell the story of Trump’s relationship with his original fixer, Roy Cohn, has struggled to get distribution in the United States, despite finding distributors almost everywhere else in the Western world. Speaking anonymously, domestic distributors said they shelved the film for fear of retaliation from Trump.

This self-censorship, a preemptive gag order by another name, is akin to the authoritarianism we see more often in countries like China. In countless other ways, Trump threatens to bring our country’s public and private institutions to their knees during a second term.

Non-disclosure agreements stand in the way of democracy

Likewise, Murphy’s early insistence on the broadest campaign NDAs presaged his drive to make New Jersey’s government far less democratic. It led to his use of NDAs during his gubernatorial transition, and then to his silencing of state employees who complained of sexual misconduct once he was in office.

Strikingly, Murphy continued his efforts to silence women who had worked for him even after he reluctantly signed a bipartisan bill banning potential nondisclosure agreements for toxic workplace issues.

This drive for opacity has led to increasingly authoritarian tendencies on other fronts. During his tenure, Murphy has reduced the ability of the state campaign watchdog to investigate campaign violations and weakened local pay-to-play laws.

He also signed a law banning journalists from informing readers about the residence of their officials, even if it means those officials do not meet legal residency requirements.

In any case, New Jersey government is much less transparent under Murphy than when he found it.

While this kind of silencing starts in the workplace, it rarely ends there. If we are prevented from talking about workplace toxicity, it stands to reason that the bad behavior will continue unabated.

Voters should demand to know whether the politicians who ask for their support are silencing their own employees. Because chances are that if they don’t believe in allowing their own employees free speech, they’ll also stifle transparency for the rest of us.

That is something our democracy will struggle with.

Gretchen Carlson is a journalist, bestselling author, and internationally recognized advocate for women’s rights. Her actions against workplace harassment at Fox News paved the way for the global #MeToo movement. Julie Roginsky is a political consultant and women’s rights advocate who sued Fox News for sexual harassment and retaliation. Together, they co-founded the nonprofit Lift Our Voices, which works to eliminate forced arbitration and NDAs for toxic workplace issues.