Thread by @Teri_Kanefield

(Thread) Trump and his NDAs (nondisclosure agreements)

Again Trump threatens to sue ex-White House staff for violating an NDA:
newsweek.com/donald-trump-c…

Spoiler: Trump’s NDAS are unenforceable and they demonstrate why he was the perfect “tool” for the Russians.

https://twitter.com/jiveDurkey/status/1090251745228402688

1/ Kellyanne Conway confirmed that “everyone” in the West Wing signs NDAs.
politico.com/story/2018/08/…

Omarosa made public the agreement she was asked to sign: cnn.com/2018/08/14/pol…

Typically Non-Disclosure Agreements are used to guard trade secrets:
nolo.com/legal-encyclop…

2/ Trump uses NDAs to guard his personal secrets and to prevent people from saying negative things about him.

The first problem with NDAs is a feature in contract law: There’s no penalty for breach. There are exceptions (punitive damages) but . . . legalmatch.com/law-library/ar…

3/ . . the general rule is that if you breach, you pay the actual damage caused by the breach. legalmatch.com/law-library/ar…

Okay, so: What are the actual damages to Trump if someone tells the truth about him?

4/ The statement: “I, the President of the U.S., was damaged when someone told the truth about me,” has obvious problems.

White House NDAs also pose a First Amendment problem. Under the First Amendment, the government can't silence a citizen without a compelling reason.

5/ Omarosa’s agreement contains a non-disparagement clause, requiring that she promise that during the term of service “and at all times thereafter” she won’t demean or disparage publicly, in any manner, Trump, Pence, or any members of their families.
cnn.com/2018/08/14/pol…

6/ So, the contract seeks to forbid a citizen, for the rest of her life, from criticizing the president, the vice president, and their families.

I think we can assume others were given—and signed—similar clauses.
cnn.com/2018/08/14/pol…

7/ The contract also contains an arbitration clause, which is (arguably) unenforceable because it has an illegal purpose: Hiding info from the public about the POTUS & preventing a citizen from criticizing the president.

8/ Apparently attendees at the June 2016 Trump Tower meeting signed NDAs, which brings us to another shortcoming of NDAs: If subpoenaed, you have to talk.
cnn.com/2017/10/09/pol…

9/ WaPo last year reported that White House NDAs included a $10 million penalty for breach. washingtonpost.com/opinions/trump…

10/ This is called a liquidated damage clause, and it’s legal if actual damages are difficult to calculate, and if the amount demanded is reasonable.
law.cornell.edu/wex/liquidated…
Any monetary damages for telling the truth about the president is laughably unreasonable.

11/ Think of punitive liquidated damages as the ultimate bullying tactic: "If you talk badly about me, I’ll send my lawyers after you, and they’ll take everything you own."

Yes, this has a lot in common with mob lawyers. nytimes.com/1985/03/12/us/…

12/ No coincidence: Comey and others have compared TrumpWorld to the mob.
cnn.com/2018/04/11/pol…

Last March Bob Bauer wrote that Trump doesn’t look to lawyers for legal advice. He sends his lawyers to do his bidding.
lawfareblog.com/president-and-…

13/ Trump’s view is that his lawyer’s job is to find a way around the law while providing him with a veil of deniability.
lawfareblog.com/president-and-…

All of this raises two questions:
First: Why all the secrecy?
Second: Why were Trump’s lawyers writing unenforceable contracts?

14/ According to the NYT, when White House lawyer McGahn drew up the White House NDAs, he warned Trump that they probably couldn’t be enforced. nytimes.com/2018/03/21/us/…

McGahn also told aides the NDAs were “mainly to placate the president.”

15/ Unenforceable contracts with liquidated damages serve a purpose: Intimidate people into silence.

Recall that the Steele Dossier alleged that Trump typically silenced witnesses against him:

16/ One way to prove guilt is to show pattern or practice.
For more on pattern and practice under the rules of evidence, see:
law.cornell.edu/rules/fre/rule…

17/ Example: if a guy robbed ten liquor stores using the same tactics, and an 11th store was robbed using the same tactics, and he was in the area, this can be used as evidence that he robbed the 11th, too.

Trump’s history of hushing people helps substantiate the Steele Dossier.

18/ As an aside, Trump also silences people with hush money.

One problem: Hush money doubles as blackmail material. The person paid hush money can always come back and say, "Pay me more or I'll talk."
npr.org/2018/12/15/677…

18/ If people being silenced are (let’s just say) Russian, they’re not worried about lawsuits.

@TimothyDSnyder (Snyder Speaks series) says Trump was the perfect tool for the Russians—not just because of all the blackmail material—but because Trump already lived in a fake world.

19/ About that fake world. Remember, Trump was never a good businessman. But he was good at pretending to be a good businessman (he even played one on TV).

See this article about how, when Trump's fans learn that he wasn’t self made, Trump loses support. politico.com/magazine/story…

20/ Trump’s whole act requires hiding the truth. NDA’s are a tool for that.

Last summer, before the midterms, I worried that Trump would succeed in torpedoing factuality for a significant percentage of the population, which of course, helps immunize him from consequences.

21/ Why? Because without factuality, you can't have rule of law. The results of investigations and even jury verdicts have no meaning.

As @jasonintrator says: Without truth, you can't speak truth to power. So there is only power.

21/ Indeed, many of his followers are immune to the truth.

But it’s growing increasingly clear that as the truth emerges, Trump will lose support.

At under 40%, he doesn’t have much to lose: projects.fivethirtyeight.com/trump-approval…

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