Trump’s Campaign Was Ordered To Pay $350,000 For Trying To Enforce An “Unenforceable” Nondisclosure Agreement

A former staffer unsuccessfully tried to sue Trump, but his campaign’s effort to enforce a legally unsound NDA was the wrong move, an arbitrator found.

Randall Hill / Reuters

Former president Donald Trump speaks during a rally in Florence, South Carolina, March 12.

WASHINGTON — Former president Donald Trump’s campaign organization was ordered to pay more than $350,000 in legal fees and expenses for trying to enforce an “unenforceable” nondisclosure agreement against former staffer Alva Johnson, according to an order entered this month in a nonpublic arbitration case.

The March 10 order, which was made public this week by Johnson’s attorneys, was the latest setback for the Trump campaign in its effort to use NDAs to try to punish former staffers who publicly criticize or take legal action against Trump. An arbitrator found that even though Johnson’s effort to sue Trump failed — she accused him of trying to forcibly kiss her and raised pay discrimination claims, but the case was tossed out — the campaign couldn’t invoke a legally unsound nondisclosure agreement.

Trump has a history of trying to use arbitration, much of which takes place in private, to try to keep potentially damaging or embarrassing claims out of court, where hearings and documents are generally public. When he ran for president in 2016, many campaign workers were reportedly directed to sign nondisclosure agreements that broadly barred them from sharing information about the campaign or saying negative things about Trump, his family, and his businesses; the agreement specified that the campaign could press complaints about alleged violations of the agreement in arbitration.

In two previous cases, though, a judge and an arbitrator concluded that key sections of that agreement were too vague and ill-defined to be constitutionally enforceable. The arbitrator handling Johnson’s case, Victor Bianchini, a retired federal magistrate judge from California, found those decisions persuasive and dismissed the campaign’s complaint against Johnson late last year. That left a request by Johnson’s lawyers to have the campaign pay their legal bills as the winning party. Bianchini agreed they were entitled to those fees and ordered the campaign to pay $303,285; the campaign will also have to cover the costs of the arbitration itself, which came to around $50,000.

“The Trump campaign has tried to use its unenforceable NDA to unlawfully silence its critics,” Johnson’s lawyer Hassan Zavareei said in a statement. “We are pleased that the arbitrator has held that these efforts cannot stand and ordered the campaign to compensate our client for the hundreds of thousands of dollars in legal fees that the campaign forced her to incur.”

Trump spokesperson Liz Harrington provided a statement calling the outcome "pathetic and totally contrary to the rule of law and any reasonable sense of fairness."

"After Johnson’s total defeat, President Trump sought damages for Johnson’s disgusting lies about him in arbitration. But instead of enforcing a crystal clear nondisparagement agreement between the parties and making Johnson pay for her nasty conduct, Johnson’s fraud was rewarded with an award of attorneys’ fees. Anyone can see that Johnson’s blatant lies and bad faith conduct completely preclude her from profiting from her illicit conduct, especially after a video revealed that President Trump did nothing wrong," Harrington said.

Bianchini described the case as “procedurally tortured” as he recounted the legal twists that led the fight to come before him. In early 2019, Johnson filed a lawsuit against Trump and his campaign in federal district court — a public case, unlike the private arbitration. Johnson claimed that during a campaign stop in August 2016, Trump had tried to kiss her. In addition to a battery claim related to the kiss incident, Johnson, who is Black, lodged allegations that she’d been paid less than other campaign workers because of her gender and race.

A few months after Johnson filed the lawsuit, the judge dismissed it, finding that it relied too heavily on previous, unrelated allegations of harassment involving Trump and was too light on details about the alleged pay discrimination. The judge gave Johnson an opportunity to refile the lawsuit, explaining that she’d need to streamline the battery claim and beef up the pay-related parts.

“As currently stated, the Complaint presents a political lawsuit, not a tort and wages lawsuit. Plaintiff will receive a fair day in court, but the Court will try a tort and wages dispute — not a political one,” US District Judge William Jung wrote at the time.

Shortly after Jung entered his order, the Trump campaign released a video of the campaign stop encounter at the heart of Johnson’s battery claim. It shows Trump greeting a group of people inside an RV, and as the camera pans to Johnson, the candidate can be seen leaning toward her and giving her a kiss in the area of her cheek as he holds her shoulders. Jung apparently expressed some concern about whether Johnson’s battery claim would be viable in light of the footage, according to Bianchini’s summary of events.

Johnson didn’t end up refiling the case. Her lawyers at the time maintained that the video didn’t clear Trump of wrongdoing — attorney Zavareei described the scene in a statement to CNN as Trump “grabbing” his client and “pulling her into him” to kiss her in front of others — but that they’d decided to drop the case given Jung’s apparent skepticism and his admonition that she couldn’t bring in information about past allegations of harassment from others against Trump.

The fight didn’t end there, though. In September 2019, the campaign filed a demand for arbitration that accused Johnson of violating the nondisclosure agreement that she’d signed.

While the campaign’s arbitration case against Johnson was pending, two other former Trump campaign staffers — Jessica Denson and Omarosa Manigault Newman, who also served in the White House for a period of time — won challenges to NDAs that they’d signed that were identical to the one at issue in Johnson’s case. Denson prevailed in federal court and Manigault Newman won before an arbitrator.

In November, Bianchini dismissed the campaign’s arbitration case against Johnson. Citing the decisions in Denson and Manigault Newman’s cases, the arbitrator concluded that the confidentiality and nondisparagement sections of the NDA were “vague and unenforceable.” Bianchini quoted sections of those earlier rulings finding that the nondisclosure language could “conceivably cover any information related to the campaign” and had no time limit, and the scope of the nondisparagement language, which appeared to cover potentially hundreds of companies affiliated with Trump and his family members, was too broad.

Johnson’s lawyers then filed a petition for the Trump campaign to cover their fees and expenses, totaling around $380,000. The Trump campaign, represented by attorney Justin Clark, opposed the request, arguing that the arbitration and the federal lawsuit that came before it were based on “a politically motivated lie that Respondent shamelessly created and advanced in court and the media.”

But Bianchini found that the campaign’s effort to try to punish Johnson for her conduct in the federal case by denying her legal fees in a case she’d won in arbitration was “misguided and incorrect.” The campaign could have pursued its own civil claims against her for malicious prosecution or defamation, he wrote, but they didn’t, instead trying to enforce parts of an NDA that multiple decision-makers had concluded were invalid.

The arbitrator rejected the Trump campaign’s argument that Johnson and her lawyers had acted in bad faith in their defense against the arbitration complaint. He did reduce the amount that Johnson’s lawyers had requested, finding that some of the hours they’d claimed were excessive; he noted that he didn’t think the tally of hours was dishonest but likely the result of “inefficiency,” and he praised attorneys on both sides for their competence and professionalism.

The Trump campaign will also have to cover $2,950 in fees to the American Arbitration Association and $43,948 to compensate Bianchini for his work on the case.

UPDATE

This post has been updated with a comment from a spokesperson for Donald Trump.