Non-disclosure agreements were designed to protect trade-secrets, but they've morphed into a system for covering up misdeeds, silencing whistleblowers, and suborning perjury — often at taxpayer expense.
Behind the scenes, a coterie of morally flexible, ingeniously crooked lawyers have standardized a secret, virulent form of NDA whose existence is itself confidential, as are its illegal and immoral standard boilerplate clauses.
But even though the new NDA was wielded by a small class of specialists, their services have been in much demand, and so they have written so many of these NDAs on behalf of the wealthy and powerful that it was only a matter of time until these agreements would end up in front of a real judge, in an open court, and then find their way into the public domain.
That's just what's happening; from Bill O'Reilly to Donald Trump, the rapey plutocrat class have bound the survivors of their abuse in these NDAs, and then lacked the common sense to let well enough alone — instead, they've made disparaging public statements and even brought lawsuits against their victims, and these suits have ended up in court, and the exhibits to these suits inevitably include the NDAs.
Which is how we learned that the women Bill O'Reilly sexually assaulted were bound over with bizarre "agreements" whereby their lawyers were required to switch sides and work for O'Reilly (so that they would never be able to take another case against O'Reilly because of the conflict of interest) and the women were contractually bound to perjure themselves if they were ever called to testify in court about the existence or particulars of their NDAs.
The lawyers involved in this wheeze include the lawyers who negotiated Stormy Daniels's NDA after she had sex with Donald Trump — lawyers who appear to have been secretly working for Trump (or at least, acting as if they did).
This little gang of perjury-suborners were cozy enough that they effectively set up a parallel system of courts in the form of forced arbitration clauses that let them select one another to serve as arbitrators for each other — Trump's lawyer Marc Kasowitz (who also represented Bill O'Reilly) ended up arbitrating the dispute between Andrea Mackris (a survivor of O'Reilly's sexual harassment) and O'Reilly. He found for his old friend and client O'Reilly, and then published a statement claiming that O'Reilly had been "subjected to a brutal campaign of character assassination that is unprecedented in post-McCarthyist America."
The NDA plague has spread out of the private sector and US politics, where rapey and crooked elected officials have made a regular practice out of using taxpayer money to pay off the survivors of their assaults and abuses and then subjecting them to sweeping NDAs that keep the public from ever knowing that their elected representatives' have financed their grifting and sexual assault hobbies at public expense.
The crossover is Trump, of course, whose White House staff are subjected to NDAs; and in truth, all of Washington has a bought-silence habit, with $17 million in public money being paid to silence Congressional staffers over the past 20 years.
Disgraced ex-Alabama governor Robert Bentley made 87 members of his staff sign NDAs, then got caught fucking one of them. As of 2012, Montana had spent $200K in hush-money, but by 2017 that figure was $800K, and of course, no one knows why these payments were made, or to whom. Since 2010, the Massachusetts state government has entered into at least 33 confidentiality agreements, but they won't disclose what these agreements covered. There's plenty more — and we're not privy to any of it.
The issue is particularly problematic for potential whistleblowers.
At the federal level, a whistleblower's ability to report wrongdoing is strongly protected, but state laws tend to be weaker, vary dramatically and may not be known to employees, says Tom Devine, legal director of the Government Accountability Project, an organization dedicated to protecting whistleblowers.
He worries that any kind of agreement that curtails public employees' free speech could deter them from flagging problems.
"There are administrative and legal remedies that would allow employees to break nondisclosure agreements or speak out or blow the whistle despite a confidential settlement," he says. "But the mere existence of the agreement is highly chilling."
NDAs and Confidential Settlements Shake State Capitols and City Halls [Katherine Barrett & Richard Greene/Governing]
Secret Handshake [Dahlia Lithwick/Slate]
(via Naked Capitalism)