President Donald Trump’s proposal for federal employees to sign nondisclosure agreements would flip government business from being presumed public information to punishing workers for talking about it, setting up a high-stakes battle over free speech and transparency.
The policy, proposed last week, would create an NDA form barring federal workers from discussing internal agency operations, personnel matters, and “sensitive, pre-decisional or deliberative material.” Unauthorized disclosures could lead to criminal charges even for unclassified matters, Trump’s personnel office warned, though questions remain about how such enforcement would be carried out.
Legal scholars warn the NDAs could make it harder for the public to understand policy decisions and set up a fight over what workers can say once they leave the government.
“It threatens to cast a chill over current and former government employees’ ability to inform the public about what the government is doing with their name, and with their tax dollars,” said Heidi Kitrosser, a constitutional law professor at Northwestern University’s Pritzker School of Law who studies government secrecy. “This creates a world in which the public can only know the official narrative.”
The administration’s proposed rule would broadly shield “non-public, confidential, or proprietary information” from disclosure. The agreement would remain in effect for five years after employees leave government, effectively preventing them from speaking about their time in the Trump administration until the president is out of office.
Mimicking the Private Sector
Administration officials say the new NDAs will be similar to agreements common in the private sector, which protect trade secrets and internal deliberations. Government employees, they say, must be able to have candid discussions without the threat of leaks to the press.
“It just puts us in a situation where you can’t actually run an organization,” Office of Personnel Management Director
The #MeToo movement kicked off a push by states to consider limiting the use of NDAs—now more than a dozen have laws or regulations addressing confidentiality agreements and prohibiting their use in sexual misconduct cases.
Some have gone a step further, limiting the use of broadly worded contracts that could be seen as intimidating. In recent years, state appellate judges in California and Illinois have found that private-sector agreements are unenforceable due to their scope. The US Court of Appeals for the First Circuit reached a similar conclusion in 2021, finding that a Puerto Rico tax planning firm was using NDAs “so broad as to be unenforceable.”
Trump himself asked campaign workers to sign NDAs, and in 2016, he offered an adult film actress $130,000 to keep quiet about an alleged sexual encounter. She later sued to break the agreement. Trump’s 2016 campaign eventually agreed to pay $450,000 to settle the legal challenges to its NDAs..
“The non-disclosure provision’s vague, overbroad, and undefined terms also render it unduly burdensome,” the judge wrote.
The NDAs align with themes that have shaped Trump’s public life: hunting leakers; using the US Department of Justice to punish perceived enemies, as with author E. Jean Carroll and former FBI Director James Comey; expanding control over the federal workforce; weakening civil service protections; and unilaterally firing federal workers.
Private Public Records
Kupor said the proposal aims to protect preliminary discussions, comparing it to similar deliberative exemptions in the Freedom of Information Act. Draft language says workers would be allowed to contact inspectors general and congressional overseers.
Legal analysts who study public records laws say the NDA policy flips the default status of public business from public to secret. While FOIA requires agencies to comb through records and grant line-by-line exemptions, the NDA policy would classify all government business as secret by default, requiring workers to obtain permission for even the most minor disclosures.
The NDAs would not protect classified information such as military plans and intelligence already protected by law. Rather, the agreements would mainly protect unclassified policymaking—for instance, agency rulemaking still in development.
“It’s pretty clear that the purpose of this isn’t to protect individuals or serve the public interest,” said Stacey Young, a former senior civil rights attorney for the US Department of Justice who directs Justice Connection, a nonprofit thathelps whistleblowers. “It’s to help the president avoid bad press and cover up abuses of power that only people on the inside can see and reveal.”
The proposal comes as the White House finalizes a separate policy to convert as many as 50,000 civil servants to a quasi-political classification, known as Schedule Policy/Career.
“This is consistent with the politicization of the workforce,” said Mark Fenster, a law professor at the University of Florida who studies NDAs and government transparency.
The proposal threatens a range of consequences for workers who don’t comply, including possible criminal charges. Agreements “may be enforced in the US District Court,” it said.
While the NDA policy doesn’t create any new standards for what’s confidential and what isn’t, it could give the government a basis to file civil claims against current and former employees, arguing that they breached a contract, Fenster said.
The US Supreme Court ruled in 2014 in Lane v. Franks that public employees have First Amendment protections for speech outside their normal duties, while acknowledging that employers have an interest in limiting employee speech to some degree.
“There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees,” because the employees best know the agencies for which they work, Justice Sonia Sotomayor wrote in a unanimous opinion.
“However,” she added, “our precedents have also acknowledged the government’s counterveiling interest in controlling the operation of its workplaces.”