Agreements can require silence or they can permit comment so long as it is not disparaging they can limit the scope of silence to certain subjects or can enumerate a broad, seemingly endless set of subjects they can remain silent about litigation or force any challenge to the contract to binding arbitration. Such NDA abuses are multifaceted as well as widespread. Trump has sought to use NDAs signed with the private presidential campaign against former campaign employees about work performed while they were employed by the federal government.
#Stormy daniels the perfect stormy professional#
The contracts impose silence on those who have held a range of professional and personal relationships with the President, and cover a wide range of issues of a political as well as of a personal and prurient nature. The President and his various legal entities, partners, and supporters (including Fox News), have required employees and others to sign NDAs in order to protect President Trump from exposure, expanding the universe of promises well beyond those with whom the President has allegedly had an isolated or occasional dalliance. But Trump’s NDAs appear to be unprecedented for a public figure and elected official. Hillary Clinton’s 2016 presidential reportedly used them (though required them of fewer staffers) earlier in the decade, NDAs that silenced victims of the Catholic Church’s sexual abuse scandal and presidential hopeful Herman Cain became public.
The Stormy Daniels NDA, along with the many other Trump NDAs that have been revealed, thus represent merely the large, intensely radioactive tip of a proverbial iceberg. The sexual abuse and harassment which the #MeToo movement had disclosed, for example, had been protected in many instances by NDAs. By hiding public harms and widespread private ones, NDAs create public costs notwithstanding their seemingly private nature.
NDAs are now intimately related to our politics, as well as to larger questions of human relations and rights. The issues surrounding NDAs aren’t merely theoretical for academics and counsel. “And of course,” I continued, “an intelligence agency could, and indeed should, require its employees to sign away their First Amendment right to speak of their classified work after they leave the agency.” So why couldn’t anyone, with sufficient knowledge and a reasonable amount of bargaining power, bargain away their right to future speech, as well as their right to litigate in court about their right to speak? “Shouldn’t a company be able to keep its trade secrets confidential and require its employees to maintain that confidence,” I asked. Is it per se immoral, and should it be illegal, to buy someone’s silence with an enforceable agreement? Here, the students’ neophyte status, and perhaps their lack of confidence, required me to push them. The Stormy Daniels NDA also inspired discussion of the NDA as a species of contract. Most strikingly, the contract begins on and includes, in its all-cap title, the typo “NON-DISPARAGMENT AGREEMENT.” One student sheepishly remarked to me after class that she worried about joining a profession that could have produced such an abomination of composition. Each provision held an Easter egg for the discerning student to discover or a laugh line seemingly borrowed from SNL. They wondered at the drafter’s various bad word choices, repetitions, and formatting decisions. My students could identify the NDA’s component parts and how they were constructed, as well as the drafter’s intent and how it could be (and ultimately was) frustrated. We had before us such an obviously miserable version of a contract that we could begin to identify what an actual one might say. Like a child’s drawing of a misshapen, non-functional house, the NDA gave the appearance of a contract while revealing a deep misunderstanding of its proper architecture.
It served well as an introduction to many of the course’s topics. Warning my students to put their politics aside, I circulated the “Stormy Daniels” non-disclosure agreement (NDA) for the first day of my 1L Contracts course.