Trump And NDAs
DAVID GREENE, HOST:
Karen McDougal, a former Playboy model, is filing a lawsuit so she can openly discuss an affair she says she had with President Trump more than a decade ago. McDougal can't talk about it yet because of a nondisclosure agreement, or NDA, that she signed with a tabloid in 2016. Now, the adult film actress Stormy Daniels has filed a similar suit against the president and his lawyer. And there are also reports that President Trump has made some White House employees sign NDAs. So how do these agreements hold up under legal scrutiny? Well, let's ask Chris Truax. He's an appellate lawyer who has written about this subject, and he joins us this morning.
Mr. Truax, thanks for coming on the show.
CHRIS TRUAX: My pleasure, David.
GREENE: So I just want to note that Karen McDougal's nondisclosure agreement was not arranged directly with the president but with the publisher of the National Enquirer. And there have been accusations that that publication might buy stories and then not run them to avoid damaging Donald Trump. What is her case here? Does she have a chance to be able to speak openly?
TRUAX: It's - yeah. That's sometimes referred to as catch and kill. And apparently, it was a fairly common practice at the National Enquirer. The two cases - Stormy McDaniels (ph) that you mentioned and Karen McDougal - are - they're actually very different. One, in Karen McDougal's case, it's a pure hush money agreement - or in Stormy Daniels' case, a pure hush money agreement. In Karen McDougal's case, she had arranged to sort of boost her career, and they offered her covers of magazines. And they were going to publish her articles and various other things. And she's - most of her complaints - I reviewed the complaint. And mostly, she seems to be mostly upset that she doesn't think that the National Enquirer had followed through.
GREENE: She's mad that they never ran the story. She's mad if they caught it and killed the story, you're saying.
TRUAX: Right. And she wasn't on the cover of the Men's Fitness that she wanted to be on, et cetera. But there is interesting thing that ties these two cases together. It may well be that both of these agreements were signed to keep the stories out of the press during the election.
TRUAX: And if this was done in coordination with the Trump campaign - and I think in the case of Stormy Daniels, it almost certainly was - then this would've been an illegal in kind campaign contribution.
TRUAX: Yeah. You can't enforce a contract for an illegal purpose. That's against public policy. And the courts will just throw an agreement like that out.
GREENE: So an NDA used to keep something quiet during a campaign might be illegal because it's a type of campaign contribution.
TRUAX: Depending on the circumstances and how exactly that occurred, that's exactly correct.
GREENE: That's so interesting. Well, there's another question here, which is - I mean, Stormy Daniels' argument is that Donald Trump himself did not sign this agreement. Is that an argument that might hold up for her? Because she's going on - we think she's going to be on - in an interview on "60 Minutes" this weekend. So, I mean, you know, this could be a moment where her legal reality could really be seen.
TRUAX: Well, yeah, that's quite true. And certainly, I mean, in terms of contract law, it is a little suspicious when you've got a contract, and one of the parties appears not to have signed it. But Stormy Daniels actually raised an interesting point. Once the sort of cat is out of the bag, the cat is out of the bag. And trying to enforce a nondisclosure agreement after people have filed lawsuits about it and everybody can hold the complaint in their hand and read exactly what happened, it's a little bit - it's - the horse is long gone, and you're trying to slam the barn door. So I - the longer these - the longer the White House tries to pursue these nondisclosure agreements, just - they sort of keep the story going. So in that sense, the nondisclosure agreement has completely failed.
GREENE: And just lastly, what about these nondisclosure agreements that The Washington Post is reporting the president asked people who work for him to sign? Because a lot is at stake here. There are people who have been talking to the special counsel, for example, who might want to share their story at some point. Do those hold up to legal scrutiny?
TRUAX: Well, no nondisclosure agreement can prevent you from talking to the police. That's just course (inaudible), though. That violates public policy. These two agreements are probably unenforceable for at least two reasons. If you work for the White House, you work for the federal government, not the president personally. And therefore, you're bound by the First Amendment.
GREENE: I see. So if a president is asking his employees to sign an NDA, I mean, those are things that if it became a legal fight at some point, if people wanted to share information about the president or about their jobs, might not hold up in court. This is...
TRUAX: Absolutely. It's unconstitutional.
GREENE: This is all such interesting stuff that must be fascinating to study and write about. But sadly, we're out of time. But I'd love to keep this conversation going at some point because a lot to cover. Chris Truax is an appellate lawyer in San Diego who joined us on Skype this morning to give us some of the background on nondisclosure agreements. Thanks so much. We appreciate it.
TRUAX: All right, thank you.
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