White House seeks gag order for all federal workers

In an attempt to stop federal workers from sharing information with journalists, the Trump administration may soon ask them—all two million of them—to sign non-disclosure agreements, or NDAs.

A draft document shared Tuesday by the Office of Personnel Management (OPM) outlined a set of civil and criminal penalties the federal government could pursue against any employee who breaks their NDAs and shares “non-public, confidential, or proprietary information” about their job.

It’s not unheard of for federal employees to sign legally binding NDAs—covert operatives, for example, have signed them for decades. But for practical, ethical, and legal reasons, NDAs are a relative rarity in the public sector; they’re better known for their starring role in the broad universe of private-sector litigation. There, they are weapons celebrities and public figures wield against each other—essentially reputation management tools. Donald Trump himself has historically been fond of NDAs, paying adult film star Stormy Daniels $130,000 to sign one in 2016, and asking all White House staff to sign them in 2018. White House Counsel Don McGahn initially “refused to draft or distribute” those agreements “because he did not think they were enforceable.” 

A blanket NDA across the federal government would be even more difficult to enforce, legal experts say. “The Supreme Court upheld, for example, non-disclosure agreements for a CIA agent,” said David Loy, legal director at the First Amendment Coalition, a nonprofit free-speech group. “But to the best of my recollection that has never been extended to garden-variety government workers.” 

An Office of Personnel Management media relations officer wrote in an email that the agency aims to stem the tide of government leaks, which are “disrupting agency operations and eroding trust across government.” 

Those leaks included “the release of personal information belonging to approximately 4,500 ICE employees,” the release of planned ICE operation information, and “unauthorized disclosures from Federal employees divulging the secret U.S. raid on Venezuela prior to it occurring.” 

To some press freedom advocates, these exact examples show that a government-wide hush order would be counterproductive. 

“Aggressive efforts to stifle interactions between government employees and journalists ultimately threaten the public’s access to newsworthy information,” Gabe Rottman, vice president of policy for the Reporters Committee for Freedom of the Press, told me. “The reporting identified in the draft notice itself illustrates the importance of journalists being able to talk with federal officials about issues across government.” 

In its press release, OPM claimed its NDA would be “fully consistent with existing whistleblower protections under federal law,” and that signing it would supposedly be optional. But the category of “non-public, confidential, or proprietary information” contained in the draft documents is remarkably broad—and open to some interpretation. 

“Even if the NDA does not impose new restrictions on its face, it could still chill protected speech if employees are led to believe they cannot discuss anything related to their work,” Foundation for Individual Rights and Expression Senior Attorney Greg Greubel said. On its face, the NDA’s only enforceable parts are already covered by confidentiality obligations that have always come with working for the government. “So the issue is less the NDA’s text than how agencies implement and communicate it,” Greubel said.

“To leak out the notes of a meeting is not the same as leaking the nuclear codes, right?” said Loy, of the First Amendment Coalition.

Jessica Levinson, a professor at Loyola Law School in Los Angeles, said that the legality of the NDAs depends on exactly how broad they are. “If the NDA basically just duplicates duties of confidentiality that public employees might already have, then there really isn’t an issue here,” Levinson said. “On the other end of the spectrum, there is an issue if the administration wants this NDA to act as a catch-all gag order.” 

Some federal employees’ advocates fear that might be the case. Everett Kelley, president of the American Federation of Government Employees—the union representing over 800,000 federal employees and DC government workers—wrote in a statement that “federal employees do not surrender their First Amendment rights when they accept federal employment, and the public has a right to know about this administration’s abuses.”

“Federal agencies already have extensive policies and procedures in place for preventing the unauthorized release of classified or privileged information,” Kelley added. “This proposed rule sweeps in an extraordinarily broad category of information, extending restrictions to the very material the public relies on to learn when an administration is causing harm.”