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The news media isn't disclosing Trump's non-disclosure agreements. Should it?

| Tuesday, Sept. 11, 2018, 4:15 p.m.
Former White House staffer Omarosa Manigault Newman declared she ‘will not be silenced’ by President Trump, remaining defiant as her public feud with her former boss shifted from a war of words to a possible legal battle.
Former White House staffer Omarosa Manigault Newman declared she ‘will not be silenced’ by President Trump, remaining defiant as her public feud with her former boss shifted from a war of words to a possible legal battle.

WASHINGTON — Love her or hate her, trust her or not, Omarosa Manigault Newman inadvertently exposed a little secret about how political journalism gets done in 2018: Some of the people you see talking on TV or who are quoted in articles about President Trump are legally obligated to say nice things about him.

Trump acknowledged last month that Manigault Newman — author of “Unhinged,” a tell-all book about her time in the White House — had signed a nondisclosure agreement (NDA) when she went to work for his 2016 campaign. He suggested she had violated the agreement, which obligates signers not to disparage Trump or members of his family.

Which raises a question: Are others who have signed an NDA with Trump really being honest in those media interviews, or are they just lauding the president because they legally can’t do otherwise?

The issue extends to the news media as well. Shouldn’t news organizations disclose that the Trump officials they quote or put on the air are legally bound not to criticize the president, given that doing so would enable readers and viewers to better judge where an interviewee is really coming from?

In the weeks since Trump called out Manigault Newman, a former White House aide (“Wacky Omarosa already has a fully signed Non-Disclosure Agreement,” he tweeted), few news organizations have provided clues about who else is speaking under an NDA and is obligated to its terms.

Current and former Trump officials are regularly interviewed for their views, and some have taken on prominent roles as media commentators themselves. Boris Epshteyn, a senior adviser to Trump’s campaign and briefly a member of his administration, is Sinclair Broadcast Group’s chief political analyst, charged with giving his opinions in commentaries that air on dozens of Sinclair-owned stations around the country.

Epshteyn regularly discloses to viewers his former roles with Trump, but hasn’t mentioned that he signed a nondisparagement agreement while he was with the campaign. Asked for comment, Epshteyn declined to address the issue directly. “I am proud to offer our viewers my unvarnished perspective and analysis based on facts and my experience,” he said in a statement.

The Trump administration, like the Trump campaign and Trump Organization before it, appears to have signed dozens of current and former officials and employees to NDAs. White House press secretary Sarah Huckabee Sanders hasn’t specified who or how many people have signed, but she has characterized the agreements as “common” and “very normal” for this White House.

It’s questionable whether NDAs are actually enforceable for public employees; law professor Heidi Kitrosser of the University of Minnesota said in an interview that a court would very likely find such a broad government-imposed restriction on speech a violation of the First Amendment. “An agreement saying you may not disparage the president is clearly a viewpoint-based restriction about matters of utmost public concern.”

But that doesn’t mean an NDA isn’t effective in silencing critics, said attorney Debra Katz, who specializes in employment discrimination and whistleblower-retaliation claims. “Of course [NDAs] chill speech,” she said. “That’s their purpose.”

Under one such agreement from the 2016 campaign obtained by The Washington Post, signers promised not to “demean or disparage publicly” Trump or any members of his family. Another draft version, obtained by The Post’s Ruth Marcus in March, exposes violators to monetary penalties for unauthorized disclosure of “confidential” information, defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,” including “communications … with members of the press” and “with employees of federal, state, and local governments.”

Yet another version — one that Manigualt Newman said she declined to sign with Trump’s 2020 campaign — prohibited sharing in perpetuity a long list of potentially valuable information. This NDA prohibited disclosures about “assets, investments, revenue, expenses, taxes, financial statements, actual or prospective business ventures, contracts, alliances, affiliations, relationships, affiliated entities, bids, letters of intent, term sheets, decisions, strategies, techniques, methods, projections, forecasts, customers, clients, contacts, customer lists, contact lists, schedules, appointments, meetings, conversations, notes and other communications” of “Trump, Pence, any Trump or Pence Family member, any Trump or Pence company, or any Trump or Pence Family Member Company.”

Such agreements create a compromising circumstance for both interviewer and interviewee, said Gabriel Kahn, a professor of journalism at USC’s Annenberg School.

“I don’t see any acceptable situation where someone has an NDA and doesn’t disclose that in an interview,” he said. “This is material information that goes to the credibility of an interview. The audience has a right to know if the person they’re hearing from has agreed to limit or censor themselves in some way.”

Kahn compared undisclosed NDAs to other kinds of would-be conflicts of interest, such as a source with an undisclosed personal relationship or a hidden financial stake in a company he or she was touting to the news media. “It’s completely inappropriate,” he said.

A CNN spokeswoman, Barbara Levin, said the network discloses to viewers when its paid contributors have NDAs “and [we] will continue to remind viewers of this fact any time they participate in relevant conversations that require such disclosure.”

However, CNN’s hosts have raised this issue only twice with the network’s contributors since Trump announced he was running for president in 2015, according to a search of the Nexis database.

During a panel discussion last week, prime-time host Chris Cuomo asked CNN contributor Jason Miller if he had signed a nondisparagement agreement when he was a Trump campaign and transition spokesman. Miller — a paid CNN analyst for the past 17 months — acknowledged for the first time on CNN that he had, but said it didn’t limit his views. “I can voice my opinion however I want, whenever I want,” he told Cuomo.

Corey Lewandowski, Trump’s former campaign manager, declined to answer a similar question from host Erin Burnett during his first appearance as a CNN commentator in June of 2016. “I’m a guy who calls balls and strikes,” he responded. “I’m going to tell it like it is… . There is nothing that’s going to stop me from telling the truth, in my opinion.”

Lewandowski left the network in November 2016 but has appeared periodically as an unpaid guest since then.

Two unpaid CNN guests — former White House lawyer Jim Schultz and campaign spokesman Katrina Pierson — disclosed, without being asked, that they had signed NDAs when they appeared on the network last month.

A spokesman for MSNBC, Errol Cockfield, said his network will ask Trump officials or former officials to disclose whether they have signed NDAs. He said paid contributors have previously been required to disclose any potential conflicts to managers.

Fox News representatives did not return multiple requests for comment.

A CBS spokeswoman, Christa Robinson, said her network hasn’t hired any contributors who worked for the Trump administration “so I do not believe this question [about NDAs] pertains to us.” She did not respond to a question about CBS’s policy toward its unpaid news sources.

An ABC News representative, Van Scott, said the network “wouldn’t hire a contributor who’s not able to express themselves,” but he, too, did not comment on unpaid news sources.

NBC News declined to comment.

The Washington Post has rarely disclosed in its reporting on Trump that its named sources spoke under an NDA. But managing editor Cameron Barr said the principle should apply: “We should always disclose information and circumstances that may explain or illuminate a source’s point of view,” he said. “If it’s relevant, we should disclose it.”

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