Nondisclosure agreements let bad behavior go unchecked. That's why Trump loves them.

Standing in the atrium at Trump Tower in New York City in the wake of his criminal conviction in late May, former President Donald Trump had this to say about gag orders, more politely known as nondisclosure agreements or confidentiality provisions: 

“So we have an NDA, nondisclosure agreement. It’s a big deal, a nondisclosure agreement. Totally honorable, totally good, totally accepted. Everybody has them. Every company has nondisclosure agreements. … And most of the people in this room have a nondisclosure agreement with their company. … Totally legal, totally common. Everyone has it.”

Trump is not entirely wrong. Researchers estimate that at least a third of all American workers are bound by NDAs, though the number is likely much higher. We sign them on the first day of work; we sign them as part of a consulting agreement; we sign them to volunteer; we sign them on our way out the door in exchange for severance or a letter of recommendation or a separation package; we sign them as part of a settlement agreement. 

What’s worse is that too many of us are not even aware of what we sign and the rights we have given away, because these silencing mechanisms are buried deep in onboarding documents, employment contracts or separation agreements ‒ wrapped in legal language to convince us that we are simply required not to disclose proprietary information.

Except that, increasingly, these agreements define proprietary information not only as trade secrets but also as all manner of illegal and toxic behavior, from sexual misconduct to discrimination to retaliation. 

Trump has a long history of silencing his critics

Trump’s own history with gag orders goes back decades, long before he entered the political arena. He used them to silence both of his former wives. He used them against a former Miss Universe contestant. He used them during his time running the Trump Organization.

As the star of "The Apprentice," he enforced NDAs that, according to a former producer, covered up deeply misogynistic, sexist and racist behavior, including Trump’s alleged penchant for using the N-word to refer to a Black contestant.

Later, he used them on his 2016 presidential campaign, during his presidential transition and in the White House. And, as we now know, he used them to cover up an affair with an adult film actress and a Playboy model. 

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Trump’s 2016 campaign NDAs are especially telling. They prevented one worker from disparaging Trump for all eternity and disclosing anything “Mr. Trump insists remain private or confidential.”

An arbitrator determined that they were so expansive that another worker could “never say anything remotely critical of Mr. Trump, his family or his or his family members’ businesses for the rest of her life.” 

A judge ultimately ruled such NDAs unlawful – but only after years and presumably tens of thousands of dollars were wasted in litigating their validity.

These NDAs also anticipated the myriad ways in which Trump would use his power as president to chip away at our nation’s democratic norms, including the lengths to which he and his allies would cover up any information that they deemed personally embarrassing or harmful.

NDAs are weaponized by Democrats and Republicans

The use of NDAs by powerful elected officials is a bipartisan affliction.

Take self-described progressive Gov. Phil Murphy of New Jersey, who has chaired both the National Governors Association and the Democratic Governors Association. Murphy’s use of NDAs on his 2016 campaign was so draconian that it prevented workers, including one of us, from divulging “any knowledge or information of any type whatsoever” acquired in the course of providing services to the campaign.

What was the information Murphy was so desperate to cover up? This particular edict was sent to one of us in the midst of a lawsuit brought against Murphy’s campaign by a former volunteer, who claimed that she had been sexually assaulted by one of his senior aides. Its purpose was to prevent the disclosure of any information that might have helped the young survivor.

It would take the threat of a legislative task force, countless opinion columns in New Jersey’s largest paper and a lawsuit for Murphy to release campaign workers from these gag orders ‒ which were designed not to protect just proprietary campaign information like polling and research but also anything embarrassing to the governor or his inner circle, including allegations of misogyny, sexual misconduct and toxicity. 

Why does the use of these gag orders by our elected officials matter? It presages other anti-democratic behavior, excessive secrecy for secrecy’s sake. Trump, for example, bragged that he would only be a dictator on “day one” of his presidency.

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Chillingly, Michelle Goldberg of The New York Times reported recently that “The Apprentice,” an acclaimed movie that purports to tell the story of Trump’s relationship with his original fixer, Roy Cohn, has had trouble acquiring distribution in the United States, despite finding distributors nearly everywhere else in the Western World. Speaking anonymously, domestic distributors said they passed on the movie due to fear of retribution from Trump.

This self-censorship, a preemptive gag order by another name, is tantamount to the authoritarianism more usually seen in places like China. In countless other ways, Trump threatens to make our nation’s public and private institutions bend the knee during a second term.

Nondisclosure agreements stand in democracy's way

Similarly, Murphy’s early insistence on the broadest campaign NDAs foretold his drive to make New Jersey’s government much less democratic. It led to his use of NDAs during his gubernatorial transition, and then to his silencing of state workers who complained about sexual misconduct once he was in office.

Strikingly, Murphy fought to keep gagging women who had worked for him even after he reluctantly signed a bipartisan bill to ban prospective nondisclosure agreements for toxic workplace issues. 

This drive toward opacity has led to increasingly authoritarian tendencies on other fronts. During his time in office, Murphy has reduced the ability of the state’s campaign election watchdog to investigate campaign violations and weakened local pay-to-play laws.

He also has signed a law to prevent journalists from informing readers of where their public officials live – even if it means that those public officials do not meet statutory residency requirements.

By any measure, New Jersey government under Murphy is much less transparent than when he found it. 

While this type of silencing begins in the workplace, it rarely ends there. If we are prevented from speaking about workplace toxicity, it stands to reason that the bad behavior will go on unabated.

Voters should demand to know whether the politicians who ask for their support silence their own workers – because chances are that if they don’t believe in allowing their own employees to speak freely, they will eradicate transparency for the rest of us, too.

That is something our democracy will have a difficult time surviving. 

Gretchen Carlson is a journalist, bestselling author and internationally recognized advocate for women’s rights whose actions against workplace harassment at Fox News helped pave the way for the global #MeToo movement. Julie Roginsky is a political consultant and advocate of women’s rights who sued Fox News for sexual harassment and retaliation. Together, they are co-founders of the nonprofit Lift Our Voices, dedicated to eliminating forced arbitration and NDAs for toxic workplace issues.