WASHINGTON — A federal judge ruled this week that a nondisclosure agreement former president Donald Trump’s 2016 campaign required staffers to sign was unenforceable, keeping alive a legal fight with ramifications for what Trump’s former staffers can say as well as any future run for office.
Tuesday’s ruling from a federal district judge in New York only affects the campaign’s ability to enforce a contract that former staffer Jessica Denson signed in 2016. But Denson filed the case as a class action, and her lawyers can now argue to extend the decision to apply to anyone who worked on the 2016 campaign and signed the same agreement.
US District Judge Paul Gardephe found that nondisclosure and nondisparagement clauses in the 2016 campaign’s employment agreement that restricted what staffers could share publicly — not just about the campaign but also about Trump, his family members, and his businesses — were too vaguely worded and ill-defined to be enforceable. The language was “unduly burdensome” and chilled Denson and other former staffers from speaking out about “matters of public interest,” the judge wrote.
“It is difficult if not impossible for Denson or another Campaign employee to know whether any speech might be covered by one of the broad categories of restricted information; whether that speech might relate to one of the several hundred potential subjects of the non-disclosure provision; or whether that speech may relate to a matter that President Trump will determine is confidential,” Gardephe wrote.
It’s not clear if staffers working on Trump’s 2020 presidential campaign were required to sign nondisclosure agreements (NDAs) — Trump’s post-presidency office and the campaign’s attorneys didn’t return a request for comment. But should Trump run for office again, the latest decision in Denson’s case at minimum serves as a warning against requiring staffers to sign contracts that indefinitely bar them from speaking about a broad range of subjects regarding Trump, his businesses, and his family.
“Today’s beautiful ruling rebukes this unmitigated censorship, and I am so grateful that my years of trial have resulted in this illegal roadblock to transparency, accountability, and justice being struck down,” Denson said in a statement.
Trump isn’t the only candidate to use NDAs, which can vary in terms of how broadly they limit what staffers and volunteers can talk about in public. In early 2020, the Nation reported that Michael Bloomberg’s presidential campaign had staffers sign NDAs; a campaign spokesperson said at the time that the agreements only covered campaign strategies and plans and wouldn’t bar someone from talking about harassment. Last month, former presidential candidate Andrew Yang’s campaign in the New York City mayoral race announced it would no longer ask volunteers to sign NDAs after facing public backlash.
Trump had a history of requiring his employees to sign NDAs before he became president, according to the Associated Press, and carried the practice not only into his 2016 campaign, but also to the White House. NBC News reported last year that when Trump made a surprise visit in 2019 to Walter Reed National Military Medical Center, he required doctors and staff involved in treating him to sign NDAs; two physicians refused to sign and were not allowed to see him. The article noted that privacy laws already barred medical service providers from sharing personal health information.
Denson has been fighting with the Trump campaign for more than three years over the agreement she signed in 2016. The campaign hired Denson as a national phone bank administrator in August 2016, and she was later promoted to director of Hispanic engagement. She was required to sign an employment agreement that barred her from sharing “confidential information” or publicly disparaging Trump, his companies, or his family members. The agreement included a section that stated that if a dispute came up related to those terms, Trump or his family members had the right to take it to private arbitration instead of having it litigated in public court proceedings.
In November 2017, Denson filed a lawsuit against the Trump campaign in state court in New York, claiming she’d been discriminated against and harassed by other campaign officials and had faced a hostile work environment; she didn’t lodge claims against Trump himself.
What followed were a string of cases brought by Denson and the campaign against one another in arbitration, state court, and federal court. The campaign accused Denson of violating the nondisclosure and nondisparagement clauses of the employment agreement by filing her original lawsuit. An arbitrator sided with the campaign and ordered Denson to pay nearly $50,000, but in February 2020, after several more rounds in court, an appeals court in New York tossed out the arbitrator’s award to the campaign.
Denson brought a class action that challenged the validity of the employment agreement itself, arguing that the campaign couldn’t enforce it against anyone who signed it, not just her.
In Tuesday’s ruling, Gardephe rejected the campaign’s argument that Denson lacked standing to bring the case and claim that the agreement was unlawfully restricting her right to speak publicly about Trump and the campaign. The judge noted that Denson’s fears of facing legal consequences for speaking out weren’t abstract, given the number of times Trump or a campaign official tried to enforce or threatened to enforce nondisclosure and nondisparagement agreements over the past four years involving former campaign and White House staffers, including agreements with Omarosa Manigault Newman, Cliff Sims, and Alva Johnson.
Lawyers for the campaign had argued that Denson couldn’t show that she faced any real risk because she’d criticized Trump on social media in recent years and the campaign hadn’t taken legal action against her. But Gardephe found that wasn’t enough to overcome the campaign’s “pattern” of trying to enforce such agreements against Denson and other ex-staffers.
Gardephe wrote that Trump and the campaign’s previous threats and legal claims showed that it was “not operating in good faith to protect what it has identified as legitimate interests,” but instead had tried “to suppress speech that it finds detrimental to its interests.”