White House staff get to have opinions, too

Scott Forsyth, BridgeTower Media Newswires

President Trump is bedeviled by leaks. He tweets they are "illegal" and wants the persons making them prosecuted. All of his bluster has not stemmed the flow of information from anonymous sources. In this respect his administration is no different from the administrations of his predecessors.

Recently, we learned the president went one step further than his predecessors. The Washington Post reported he pressed White House staff to sign broad nondisclosure agreements. The draft agreement the paper obtained prohibits the unauthorized revelation 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 the White House staff." Communicating nonpublic information "with members of the press" is barred. So too is communicating "with employees of federal, state, and local governments."

The prohibition covers staff during their White House service and "at all times thereafter." In other words, don't try to write a "kiss-and-tell" book or some fictionalized account "of the operations of the White House . . . based on confidential information."

If a person violates the agreement, "the United States Government, or upon completion of the term(s) of Mr. Donald J. Trump, an authorized representative of Mr. Trump, may seek any remedy to enforce this Agreement, including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement."

Whatever you may think of Sarah Huckabee Sanders, Steve Bannon, and the other current and former staff of the White House, they are or were public employees. Consequently, they have a right, protected by the First Amendment, to speak in their private capacity, on their own time, about matters that concern the public. Pickering v. Board of Education, 391 U.S. 563 (1968); Garcetti v. Ceballos, 547 U.S. 410 (2006).

In the former case a teacher wrote a letter to the editor criticizing the Board of Education's allocation of funds between academic and athletic programs and its methods on educating the public about its budget. The Board found the letter to be "detrimental to the efficient operation and administration of the schools of the district" and dismissed him.

The Supreme Court ruled the First Amendment protected the teacher's comments. They concerned a matter of public concern and did not interfere with the teacher's performance of his duties or operation of the schools. Any member of the public could have made the comments, without sanction.

In contrast, in the latter case an assistant district of attorney went outside office channels to inform defense counsel that a deputy misrepresented facts in a search warrant affidavit. The district attorney allegedly responded by reassigning the assistant and denying him a promotion.

The Supreme Court upheld the district attorney's actions. The assistant's communications with defense counsel may have been about a matter of public concern. However, he did not express them as a private citizen but as part of his "public duties."

What about the distinction between public and nonpublic information that the nondisclosure agreement draws? Not relevant. Pickering involved both public and nonpublic information and Garcetti involved nonpublic information.

Placing a gag on public employees is bad policy besides being unconstitutional. Not knowing how government works makes government less accountable. Not knowing also diminishes the debate on how government should work. Both ideas lie behind the First Amendment.

Maybe some senior White House staff members have job descriptions that require them to communicate all concerns to the president. However, once they leave the employ of the government, they are free to speak whatever they want about their time in the White House, with a few exceptions for state secrets and information covered by the attorney-client privilege.

Unfortunately, the president equates himself with the institution of the presidency. In his mind an employee cannot be loyal to the institution without being personally loyal to him. Hence he seeks to squelch the communication of any information that may besmirch his person or the institution. That is not how our democracy operates.


Scott Forsyth is a partner at Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He can be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Mar 30, 2018