JUDGE: We’re on the record. This is the videotaped deposition of Donald Trump taken in the case … [FADES UNDER]
ANDREA BERNSTEIN: In 2010, Donald Trump sits down for a deposition in a law office in Midtown Manhattan. He's being sued by buyers in a Trump-branded building. The topic of secrecy comes up.
DONALD TRUMP: Confidentiality is very important, because I don't want my competitors to know my deals. I don't want them to see what deal I'm making in Tampa, what deal I'm making in Panama, what deal I'm making in New York, what deal I'm making throughout the world. So we have confidentiality in, uh, many of our deals — if not all, I mean, you'd have to ask …
BERNSTEIN: As we've all come to learn, Donald Trump cares a lot about confidentiality: in his business deals, in his political life, and with women. You’ve heard of Stormy Daniels, the adult film actor who says she had an affair with Trump. As the 2016 campaign drew to a close, she was paid to keep quiet.
STORMY DANIELS: He said that it was great. He had a great evening, and it was nothing like he expected — that I really surprised him.
BERNSTEIN: Earlier this year, Stormy Daniels decided to speak to 60 Minutes. According to the Wall Street Journal, President Trump personally directed the legal response to stormy Daniels. He even got his business and his son, Eric, involved. The message? If you don't keep his secrets, he'll make you pay.
[MUSIC BECOMES REPETITIVE]
BERNSTEIN: This applies to a lot of people who work for Trump in some capacity, including people who didn't allege intimate relationships, like Jessica Denson, who worked on his campaign.
She wasn't one of the big names. She started in the data department, moved on to Hispanic outreach. We found a teeny recording of her from a local TV station in Colorado during the campaign. Denson — brown eyes, brown hair, dressed in crisp business attire — is defending Trump against critics in the audience.
JESSICA DENSON: With all due respect to all of them, I think that their presence was not necessarily unbiased.
BERNSTEIN: The reason I'm telling you about her? She’s in a confidentiality fight with the Trump campaign right now. Not quite a year ago, she files a case in New York state court. She's representing herself, saying her coworkers on the Trump campaign bullied and harassed her.
She says one of them had referred to her as “his sheep.” And the Trump campaign has an unusual reaction to her lawsuit. It says, “By making these claims in a public court case, Denson has breached the confidentiality agreement she signed. The campaign demands $1.5 million. It denies the charges of harassment.” The five page confidentiality agreement — which is now in the public record — says Denson cannot reveal any confidential information about Donald Trump or any of his family, including his five children, Don Jr., Ivanka, Eric, Tiffany, and Baron. It says she can't demean or disparage publicly company or anyone in Trump's family. It even says she can't talk if she's legally required to — for example, in another lawsuit — without notifying the campaign. If that happens, she has to help Trump prevent any information from getting out.
The last paragraph says this whole agreement lasts forever.
NANCY ERICA SMITH: It’s extremely weird.
BERNSTEIN: This is Nancy Erica Smith, who represented former Fox News anchor Gretchen Carlson in her sexual harassment suit against Roger Ailes. Smith has been handling cases like this 38 years.
SMITH: Most nondisclosure agreements are when we bring a claim of discrimination or harassment, and the employer wants to settle them, but as a condition of settling, they want my client to agree not to describe what happened to her.
BERNSTEIN: But she says having to sign them to get a job? That is highly unusual, especially in a political campaign.
SMITH: This is the kind of thing you would expect when you bring a nanny into your home to see, you know, your most personal life experiences.
BERNSTEIN: Smith says there are good business reasons for confidentiality.
SMITH: Other companies have confidentiality agreements, meaning important things, like, “What’s our strategy?”
BERNSTEIN: Trade secrets, competitive information — that sort of thing. Lots of companies and lots of celebrities have them. But Trump? He's not just a celebrity. He's not just a businessman. He’s those things, and he's the president — with a long history of working to keep people silent.
[TRUMP, INC. THEME MUSIC PLAYS]
BERNSTEIN: Hello, and welcome to Trump, Inc., an open investigation from WNYC and ProPublica that digs deep into how the President's business works and who might be profiting from the Trump administration. I'm Andrea Bernstein.
ILYA MARRITZ: And I'm Ilya Marritz. Before we take Trump, Inc. any further, we have to talk about the thing that makes reporting on Trump different from reporting on other U.S. presidents.
BERNSTEIN: It’s not just that the Trump Organization is a closely-held private business, or that Trump hasn't released his tax returns. It's that Trump has worked really hard — often in hidden ways — to protect and shape his reputation.
MARRITZ: I’m dealing with this right now. I am reporting a story, which I hope to bring to you sometime soon, where every source who knows anything about this particular matter of public interest and importance — as far as I can tell, all of them have signed a confidentiality agreement.
BERNSTEIN: This insistence on confidentiality pervades even the White House. The Washington Post has reported dozens of government employees were asked to sign confidentiality agreements, although these ones are particularly questionable. A little later this episode, we'll talk with Ronan Farrow of the New Yorker, a journalist with a black belt in getting past secrecy clauses. Because, obviously, they're not airtight. We know a lot of alleged detail about Trump's personal life.
But first, let's talk about how Trump got us to this point.
[PLUCKY MUSIC PLAYS]
NEWS ANCHOR: Donald Trump failed to come up with a $30 million debt payment on bonds used to finance the Trump’s Castle casino. [FADES UNDER]
BERNSTEIN: In 1990, Trump is buffeted by what his biographer Wayne Barrett called “twin cataclysms.” One: his Atlantic City casinos faced bankruptcy, and his creditors are circling. Two: he’s divorcing his wife of 13 years, Ivana. Trump has been having a secret affair with an actress named Marla Maples. It's a logistical feat: Trump's security detail has been shuttling Maples in and out of Trump properties so she and Ivana don't meet. Inevitably, they do.
Now the New York tabloids own the story.
MARRITZ: Headline — the New York Post. Friday, February 16th. “Best sex I've ever had.” Photo — Donald with a “you got me” smile. It went on like this for months.
BERNSTEIN: To get a rescue from the banks, Trump needs to settle his chaotic and public divorce. His brand depends on it. Ivana's deal says she can't talk about their marriage, period.
MARRITZ: Lesson learned: protect your image, protect your business.
BERNSTEIN: After Trump's casino bankruptcy, big banks don't want to lend to him anymore. So he starts to shift his business model from building tall towers to licensing his name. Controlling how people think of that name matters more than ever.
MARRITZ: Our colleague Peter Elkind over at ProPublica told me this extraordinary story about a proposed condo tower Trump got involved with in 2005 in Tampa, Florida.
PETER ELKIND: It was announced initially as a Donald J. Trump signature property. And he also spoke of being a partner in the project, and it being his project.
And the message that was delivered to prospective buyers was that Trump was a developer, and a partner. And Trump actually said things to the press that conveyed that impression explicitly. To local press, he spoke of the deal being so hot and so good that while he had less than an ownership stake at 50%, uh, he did have a substantial stake, and he wanted to increase it. But his partners wouldn’t let him do so because units were selling so well.
MARRITZ: [LAUGHS] Um, I feel like the next thing you're going to tell me is that none of that was true.
ELKIND: None of that was true. He had no ownership stake whatsoever. He was simply a licenser, but the people who were buying the units had no idea.
MARRITZ: So Trump and the developer actually wanted to keep their buyers in the dark. It's in a document — the brand licensing agreement — which came to light when unit buyers sued Trump.
[PLUNKY MUSIC PLAYS]
ELKIND: On page 15, there's a one-paragraph confidentiality agreement that says, “Without the written consent of the other party, unless required by law, they will not, under any circumstances, disclose or permit to be disclosed the existence of this agreement or any of its contents to any persons or entities for any purpose whatsoever.”
MARRITZ: So neither Trump nor the developers can tell people that Trump is not a developer here. It is during this legal dispute that Trump gives a deposition saying, as you heard right at the beginning of this story, quote, “Confidentiality is very important to me.” Later, he’s asked why the license agreement also describes Trump as, quote, “a worldwide-renowned builder and developer.”
INTERVIEWER: … and developer. Why is that put in these agreements?
TRUMP: Because, um, we want them to know that we have a very important reputation and we don't want them to screw up.
INTERVIEWER: And so it's a way of — of putting in writing with the party who you're going to license your name to —
TRUMP: That’s correct.
INTERVIEWER: — that your reputation is important thing.
TRUMP: And we want them to do a good job.
MARRITZ: The tower in Tampa is never built. Trump eventually settles with the buyers.
BERNSTEIN: All of this plays out as Trump is staging an epic comeback on The Apprentice playing a successful businessman.
ANNOUNCER: [OVER JAZZY THEME MUSIC] And now, America’s boss, Donald Trump.
BERNSTEIN: In our first season of Trump, Inc., we got a fascinating tip from someone who worked on the show about catering on the set of The Apprentice. We could never confirm it — there was a confidentiality agreement.
[MUSIC CHANGES TONE]
BERNSTEIN: The White House and the Trump campaign didn't respond to our request for comments, but, in an email statement, a spokesperson for the Trump Organization said, “It’s common practice for high-profile companies, such as the Trump Organization, to require employees and business partners to sign confidentiality agreements as a means of protecting against the unauthorized dissemination of both personal and proprietary information.”
Now, the people who signed these agreements find themselves limited in their ability to speak publicly about the man who is now President of the United States.
[MUSIC PLAYS UP AND OUT]
BERNSTEIN: There’s at least one case we know of where confidentiality went beyond protecting the value of Trump's brand. It had to do with the criminal investigation in Manhattan, before Trump was president.
MARRITZ: It’s eight years ago. Donald Trump and his children, Ivanka and Don Jr., are sued by a group of buyers in the Trump Soho condo hotel in Lower Manhattan. The buyers say the Trumps misled them. The Trumps say it's a case of buyer's remorse.
The civil suit raises a red flag in the Manhattan District Attorney's office. Prosecutors there think they might actually have a criminal case, but before prosecutors can finish the criminal investigation, the buyers settle. And there's a catch — as part of the agreement, the buyers affirm that they will no longer willingly cooperate with the district attorney.
Here's their lawyer, Adam Leitman Bailey, talking with NPR’s Kelly McEvers, about his settlement with the Trump Organization:
ADAM LEITMAN BAILEY: Obviously we found other things and stuff. I can't talk about it. When I settled the case —
KELLY MCEVERS: — they asked for a confidentiality agreement.
LEITMAN BAILEY: Right.
MCEVERS: So they were like, “You found some stuff out, but if we're going to settle with you, you can't talk about the stuff you found out.”
LEITMAN BAILEY: Right.
MCEVERS: Is that confidentiality agreement forever?
LEITMAN BAILEY: Yes. I'm still not talk— I still haven't talked about it.
BERNSTEIN: Ilya and I reported on this case last year. You should look it up.
Suffice it to say, after the civil settlement, Trump's personal lawyer makes a donation to the Manhattan D.A. There’s a lot of legal back-and-forth. The Trumps argue what they did was puffery, not a crime. With the buyers silenced, the D.A. drops the case.
MARRITZ: All this was before the 2016 election. A lot of stuff that voters might've wanted to know about only came to light after Trump was elected.
BERNSTEIN: So he enters the race with all these invisible gags on the people around him. Campaign staff have these confidentiality agreements. So do transition staff.
MARRITZ: And people planning his inauguration.
BERNSTEIN: And people now working in the White House. Here's Kellyanne Conway.
KELLYANNE CONWAY: We have confidentiality agreements in the West Wing. Absolutely, we do. And — and why wouldn't we? And by the way, the fact that —
INTERVIEWER: You’re — well, you’re — you’re — you’re a public employee!
BERNSTEIN: The Washington Post says new employees at the White House are no longer being asked to sign.
MARRITZ: The commentators who defends Trump on T.V. — some of them have these agreements too. For a while, after he was fired, former Trump campaign manager Corey Lewandowski was still being paid by the campaign — where he had a non-disparagement agreement — while also being a paid contributor for CNN. And this is still going on.
ROB ASTORINO: And maybe I'll do a Trump translation.
MARRITZ: Rob Astorino, a paid CNN contributor, was recently called out on this by CNN anchor Poppy Harlow.
POPPY HARLOW: Okay. I — I just need to note that you work on the Trump 2020 advisory committee, and therefore you have signed an NDA that includes a non-disparagement clause.
ASTORINO: Mhm. Which —
HARLOW: So you can’t — you can't really tell me then if — I mean, you really don't believe the President's own words?
[AMBLING GUITAR MUSIC PLAYS]
MARRITZ: Rob Astorino is still a paid contributor.
BERNSTEIN: A number of White House ex-employees have gone on to be paid by entities that support Trump, like his campaign, or a political action committee. As is so often the case with Trump, there’s a twist. In one instance that we know about, the offer of a job seemed to come with strings attached: Omarosa Manigault Newman — yeah, we know — released a tape in August.
LARA TRUMP: As you know, everything is public.
BERNSTEIN: When she was exiting White House, Omarosa had a call with a Trump campaign official — Laura Trump, wife of Eric, daughter-in-law of Donald. Omarosa recorded the call. Laura Trump said — and I'm paraphrasing — ‘It sounds like you've got something in your back pocket.
If you come to work for the next Trump campaign, we'll want to keep things positive.’ Then she makes her offer.
LARA TRUMP: I know you — you were making $179 [thousand] at the White House, and I think we can work something out where we keep you right along those lines. Um, specifically only, and I don’t have the numbers, but we were talking about, like, $15k a month. $180,000. Does that sound like a — afair deal for you?
MARRITZ: Omarosa didn't take the offer. Now she has a bestselling book. The Trump campaign is seeking millions in fines for violating her confidentiality agreement. Lara Trump called the tape a fraud.
MARRITZ: So we've been surveying the landscape of Trump and secrecy. We began with Ivana, Marla, and Trump's sex life. And that's where we are again today.
[REPETITIVE MUSIC PLAYS]
BERNSTEIN: In August, I was in a courtroom in Lower Manhattan. Trump's former personal attorney, Michael Cohen — in a charcoal suit and a yellow tie, frequently stopping to sigh — was pleading guilty.
He said he'd committed crimes by keeping information that could be harmful to Trump out of the public eye.
MARRITZ: On or about the summer of 2016, Cohen said, in coordination with and at the direction of a candidate for federal office, I, and the CEO of a media company, at the request of the candidate, worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information.
BERNSTEIN: Without using any of their names, Cohen explained that, number one, he paid Stormy Daniels to keep quiet. And, number two, he got the National Inquirer to pay Karen McDougal for the rights to her story, without any intention of running it. The latter practice is known as “catch and kill.” Trump denies extramarital affairs with the women.
TRUMP: Get me a coat, please.
BERNSTEIN: There is audio of Trump and Michael Cohen talking about how to buy McDougal's silence. She's the former Playboy playmate who says Trump struck up a relationship shortly after his son Baron was born.
Cohen recorded this conversation in September 2016. First, you'll hear Cohen, then Trump.
MICHAEL COHEN: Um, I need to open up a company for the transfer of all of that info regarding our friend David, so that I'm going to do that right away. I've actually come up and —
TRUMP: Give it to me.
COHEN: —and I've spoken to Allan Weisselberg about how to set the whole thing up.
MARRITZ: “David” here is David Pecker, CEO of the National Enquirer's parent company. Allan Weisselberg is the Trump Organization's Chief Financial Officer. Cohen is saying the shell company he's setting up can be used to make payments to the Inquirer to suppress McDougal's story.
TRUMP: So what are we going to pay for?
COHEN: … funding. Yes. Um, and it's all the stuff — all the stuff, because you know, you never know where that company. You never know what he's going to be.
TRUMP: Maybe he gets hit by a truck.
BERNSTEIN: It sounds like Trump is saying, “If something happens to the publisher of the National Inquirer, Trump's information may not be safe.
TRUMP: Maybe he gets hit by a truck.
COHEN: Correct. So I’m — I’m all over that. And I spoke to Allan about it. When it comes time for the financing —
TRUMP: Listen. What financing?
COHEN: Well, I have to — pay …
TRUMP: So we’ll pay in cash.
COHEN: No, no, no, no, no, no. I got — no.
[MEANDERING MUSIC PLAYS]
MARRITZ: For many years, the National Enquirer kept Donald Trump's secrets in a safe. This is not a metaphor, but an actual locked box containing stories that could be harmful to him and records of hush money payments. Five sources confirmed the safe’s existence to the Associated Press. All of them spoke anonymously, because they too have confidentiality agreements.
BERNSTEIN: Despite all these efforts, people are speaking out. In a minute, the New Yorker journalist who's challenging the paradigms of secrecy. We'll be right back.
[GUITAR PICKING MUSIC PLAYS]
BERNSTEIN: Confidentiality agreements, legal settlements, “catch and kill”: all of them create an enormous barrier to truth-telling around Trump, but it turns out people do want to talk. There's a journalist at the New Yorker who's made an art of this. He's been kind of busy lately, but we got them on the phone during a break in Brett Kavanaugh’s Senate testimony.
RONAN FARROW: Hello, Andrea. How are you?
BERNSTEIN: Hi, Ronan. How are you?
BERNSTEIN: Ronan Farrow is one of the reporters who's contributed the most to our understanding of the culture of sex, power, and secrecy, and how prominent people use confidentiality agreements to control information. He won a Pulitzer Prize for his reporting on Harvey Weinstein.
BERNSTEIN: So then you start looking into President Trump, and his use of silence. So can you just tell us a little bit about how you came to do that and what you encountered?
FARROW: I personally stumbled into this through a very direct route from the reporting I did on Harvey Weinstein, who was using the National Enquirer to acquire damaging information about opponents, and also to suppress damaging information about him.
And it was through that circle of forces around the National Enquirer that it became apparent very quickly that it wasn't just Harvey Weinstein using this tactic. This wasn't just a Hollywood tactic. This was something that Donald Trump did, pretty regularly.
BERNSTEIN: Now there's an important difference here. With Harvey Weinstein, the damaging information was about alleged sexual assault. In the Donald Trump-Karen McDougal case. It's about an alleged consensual affair.
FARROW: So I wouldn't compare the two, except to say, in this one specific respect, they were both using the same playbook, of working with a tabloid outlet to manipulate and suppress the truth.
BERNSTEIN: Have you done reporting or are you aware of reporting about how Donald Trump established this relationship with the Inquirer?
FARROW: So he and David Pecker have a longstanding relationship.
BERNSTEIN: Pecker is the publisher of the Inquirer.
FARROW: The relationship that Donald Trump had with the gossip media in general extends back decades. You know, we — we’ve obviously heard the accounts of Donald Trump using fake voices and identities to call reporters.
He — he’s a person who for many, many years, has been engaged in this game of manipulating the press. You know, both the efforts to suppress items and also the effort to plant items that were favorable to him.
BERNSTEIN: Trump used to use the name “John Barron” when he called reporters, pretending to be his own PR man.
FARROW: But David Pecker became one of his closest bonds, in that respect. And, you know, in our first story about the effort to suppress Karen McDougal's account of her affair with Trump through the National Inquirer, um, we talked to a number of employees who described Trump's very cozy, very close relationship with Pecker.
BERNSTEIN: When you spoke to her then, she told you, “I'm afraid to even say his name.”
FARROW: Yes. It was her first on-the-record interview about the subject in that article, but she remained very fearful of legal retaliation, and spoke extremely carefully at that point. Karen McDougal signed a contract that she felt barred her from talking to the press. And indeed, the record of — of those contracts support that.
At the time of the elections, Karen McDougal was effectively gagged, in legal terms. Um, subsequently, there was an amendment to her agreement that allowed — on paper, anyway — some exemptions, but our understanding along the way was that, behind the scenes, even as AMI pointed to that exception and said, “Hey, we're not tagging anyone.” Their lawyers were still engaged in an effort to intimidate and silence her.
BERNSTEIN: It didn't work. McDougal told her story.
FARROW: And I, you know — I wish I could take credit for that. I — I think that that really is down to Karen McDougal becoming convinced that this was an issue of national significance as time went on, and that the public should be aware.
BERNSTEIN: After Ronan published his piece, something important happened — McDougall got back the right to tell her story. But she'd been silenced during the campaign. It was not the only way the Inquirer helped shape perceptions of Trump.
FARROW: In the eyes of a lot of the sources we talked to from around the National Enquirer, Donald Trump had a profound degree of influence over the coverage that AMI and the Inquirer did in general.
Maxine Page, one of the employees that we talked to, talked about the leverage that Pecker had over a lot of celebrities. This other employee, Jerry George, said, quote, “We never printed a word about Trump without his approval.” The political ramifications of that are pretty significant.
BERNSTEIN: Have you done any reporting on what else is in that vault at AMI?
FARROW: I have, and I cannot comment on any reporting I haven't published.
BERNSTEIN: There may be people in the Trump administration who would keep the President's secrets without signing a loyalty oath. That is how it's always worked in Washington. In this administration, dozens of White House aides were told to sign nondisclosure agreements — NDAs. That’s according to the Washington Post. These are government employees, paid by the taxpayers, who were asked to sign what the Post calls “breathtakingly broad agreements.”
HEIDI KITROSSER: It’s very, very rare that you see government agencies or actors requiring people to pledge themselves to secrecy outside of the context of classified information.
BERNSTEIN: This is Heidi Kitrosser, a professor at the University of Minnesota Law School, and an expert on first amendment and whistleblower law.
KITROSSER: The Supreme Court has made quite clear that information about government, and politics, and policy — what they sometimes sum up as “matters of public concern” — is really at the core of the First Amendment. And for that reason, the notion that somebody might be subject to criminal or civil damages for sharing non-classified information about government, um, is pretty anathema to most of the case law.
BERNSTEIN: Kitrosser says, for this reason, non-disparagement agreements made during the campaign may also violate the First Amendment, because the agreements never expire.
KITROSSER: And I think the reason for that is that otherwise you'd be driving a huge hole through the First Amendment. If you could, uh, knowing that one day you might run for office, uh, have people sign non-disparagement agreements that they'll never say a bad word about you, knowing that those will cover your time in office.
BERNSTEIN: Kitrosser says even if these secrecy clauses are on such shaky legal ground, that they'd be bounced out of court if they were challenged. Well, many people are not going to want the hassle or emotional strain of being threatened.
KITROSSER: And, instead, they’ll say, “Well, you know what? I'll just refrain from saying anything that would be deemed a breach of confidentiality, or if there's a non-disparagement clause, I'll just refrain from saying anything that might even come close to being critical, because I'm afraid I'll get sued.”
[PLUCKY GUITAR MUSIC PLAYS]
BERNSTEIN: The Framers of the Constitution wanted people to be able to criticize the president. It's an important check on presidential power. Nondisclosure agreements can get in the way of that.
KITROSSER: And I think that these NDAs, particularly in so far as they would seek to bar — not just breaching confidentiality — but saying anything that cuts against the official White House line. Um, I think that's deeply concerning. It really cuts at the heart of why we protect speech.
[CREDIT MUSIC PLAYS]
BERNSTEIN: Coming up from Trump, Inc. —
TRUMP: We are going to [CHANTING WITH AUDIENCE] drain the swamp.
[AUDIENCE CHANTS “DRAIN THE SWAMP”]
TRUMP: Decades of failure in Washington, and decades of special interest dealing must — and will — come to an end. [APPLAUSE]
BERNSTEIN: — the President, his funder, a prime minister, and a casino.
Trump, Inc. is produced by Meg Cramer. The associate producer is Alice Wilder. Bill Moss is the technical director. Original music composed by Hannis Brown. Charlie Herman and Eric Umansky are the editors. We had help this episode from Peter Elkind, Katherine Sullivan, Jake Pearson and Ariana Tobin at ProPublica.
Robin Fields is ProPublica's Managing Editor. Jim Schachter is the Vice President for News at WNYC, and Steve Engelberg is the Editor-in-Chief at ProPublica. Special thanks to Kelly McEvers and NPR’s podcast Embedded for the tape of Adam Leitman Bailey.
INTERVIEWER: That’s inter— that’s fascinating. I know you either do or don't have a nondisclosure agreement, which — if you didn't have a nondisclosure agreement — do you have a nondisclosure agreement?
INTERVIEWEE: Do I?
INTERVIEWER: You can’t stay why you can't say whether you have a nondisclosure agreement, but if you didn't have a nondisclosure agreement, you most certainly could say, “I don't have a nondisclosure agreement.” Yes?
INTERVIEWEE: You’re so smart, Jimmy. Thank you very much.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.