Justice Department Says Challenge to Trump Hush Agreement Must Go to Arbitrator

Team of Viper - Book Cover - Publicity -P 2019
Courtesy of MacMillan Publishers

If, as many legal scholars suspect, the First Amendment doesn't tolerate the hushing up of former government employees beyond restraining them from publishing classified material, by what avenue is their freedom of speech vindicated? The answer isn't a simple one.

Cliff Sims is currently suing Donald Trump in his official capacity of President of the United States to block enforcement of a non-disclosure agreement. Sims signed the NDA when he worked on Trump's presidential campaign and before he became director of White House message strategy and a special assistant to the president. After Sims left his position, he published a book titled Team of Vipers about his time working for a chaotic administration. On Jan. 31, two days after the book was released and in the midst of Sims' promotional tour, the Trump Campaign filed an arbitration claim against Sims for allegedly breaching the secrecy and non-disparagement provisions of the deal. Sims' suit seeks a declaratory judgment that the Trump Administration may not enforce any nondisclosure agreement that infringes upon his First Amendment rights.

On Thursday, Justice Department lawyers moved for dismissal.

The government brief (read here) starts out by characterizing the Trump Campaign as a "private employer."

"Private employers do not violate the First Amendment when they bring claims in arbitration to enforce a nondisclosure agreement even if the employee they are enforcing that agreement against later served in government," states the memorandum. "Plaintiff disagrees, but he has no legitimate basis for doing so."

The validity of Sims' hush agreement may be an important one, but it's not something a D.C. federal judge needs to immediately take up, the Justice Dept. argues, because of the adjacent arbitration clause and the requirement under the Federal Arbitration Act that private arbitrators get to decide the threshold question of arbitrability. The government brief also raises the issue of whether sovereign immunity prevents Sims from suing the United States and questions whether he can demonstrate sufficient injury to hold standing in the lawsuit given he wasn't prevented from going on his media tour that included stops on Good Morning America, The View, The Late Show with Stephen Colbert, CNN’s Anderson Cooper 360 and MSNBC’s Morning Joe, but the big gateway subject is whether this dispute belongs in arbitration.

Sims' complaint acknowledges Trump's arbitration demand but asserts it isn't a reason to stop the federal lawsuit.

"The Arbitration proceeding specifically and solely refers to substantive matters that took place while Mr. Sims was a federal employee serving in the White House," states the complaint. "Notwithstanding that fact, this action does not seek to intervene, interfere or otherwise stop the arbitration proceedings, as those will be separately and independently challenged."

Mark Zaid, an attorney for Sims, responds to the Justice Department's arguments for dismissal.

He tells The Hollywood Reporter, "The efforts against Cliff to punish him for exercising his First Amendment rights are originating from the Executive Branch of the United States. That President Trump is using his campaign organization as a cut-out doesn't change that fact."

The Sims dispute is hardly the only facial challenge to the validity of Trump Campaign NDAs.

Around the same time that Sims brought his dispute, another former campaign worker named Jessica Denson — who has been in court and in arbitration with Trump — brought a new claim before the American Arbitration Association. Denson seeks to represent herself and others similarly situated in a class arbitration seeking the invalidity of these NDAs.

However, the Supreme Court may have just thrown up a roadblock to such efforts. On Wednesday, in a 5-4 decision led by the high court's conservatives, it was held in Lamps Plus v. Varela that under the Federal Arbitration Act, an ambiguous agreement between an employer and an employee doesn't provide sufficient basis for class arbitration. One impact of the decision requiring disputes be resolved one by one in arbitration could be foreclosing workers' ability to obtain broad declaratory relief.

As such, if Sims can't get Trump's hush agreements litigated in open court, others in the current administration may lack the peace of mind that speaking freely won't incur legal costs.