NPR Ombudsman

Disclosing Whether Interviewees Signed Non-Disclosure Agreements


Former vice presidential spokesperson Marc Lotter waits for a swearing-in ceremony in the Eisenhower Executive Office Building in February 2017 in Washington, D.C.

Former vice presidential spokesperson Marc Lotter waits for a swearing-in ceremony in the Eisenhower Executive Office Building in February 2017 in Washington, D.C.

Newsrooms aren't perfect. Trustworthy newsrooms, however, make adjustments (preferably quickly) when their errors are pointed out.

On Thursday my office heard from two listeners who questioned a Morning Edition interview with Marc Lotter, a former special assistant to President Trump and current campaign adviser. Lotter was defending the president in the wake of an anonymous New York Times opinion piece that claimed "his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions."

Listener Jack Shelley, of Shaker Heights, Ohio, wrote:

"While [host Rachel] Martin did an admirable job challenging some of Mr. Lotter's assertions, I was disappointed that she did not ask Mr. Lotter whether he, like other members of the Trump campaign and West Wing staffers, signed a non-disclosure/non-disparagement agreement. If Mr. Lotter is contractually bound not to speak ill of Trump or his administration, the credibility of his assertions that the White House is functioning normally are in doubt. I sincerely hope that NPR will make a point of asking former Trump administration officials about whether they are bound by a non-disclosure/non-disparagement agreement when they come on the air to speak about the administration."

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Some background here: In early August, another former Trump aide, Omarosa Manigault Newman, revealed that many White House staffers had signed non-disclosure agreements (or NDAs) restricting what they could say about their time at the White House or during the election campaign. White House counselor Kellyanne Conway subsequently confirmed it. (There had been earlier unconfirmed reports.)

Non-disclosure agreements, though widely used in the business world, have not previously been common practice in government, where public accountability is paramount.

While discussing his own NDA in an Aug. 14 interview with MSNBC, Lotter said the agreement included a promise not to "demean or disparage publicly" Trump.

That is information that NPR listeners should have known in order to evaluate Lotter's comments Thursday, as well as in an Aug. 23 interview. (NPR also interviewed Lotter before the existence of the NDAs was widely known.) Our search turned up another former Trump aide, former campaign manager Corey Lewandowski, who was also interviewed subsequent to Manigault Newman's revelations. The Washington Post reported that he signed an NDA.

The agreements, of course, raise questions about whether the interviewees are able to be honest when defending the White House. One assumes that former aides to any president generally will continue to be publicly supportive. But an NDA could transform that support into a legal obligation (although legal experts have questioned whether the current White House NDAs are enforceable).

Lotter told MSNBC that the agreement he signed was "standard operating procedure" meant as assurance that the president could trust that conversations with aides would remain confidential. Nonetheless, NPR should have disclosed that information. Such agreements should also be a factor in whether NPR even books such guests, at all.

On Thursday I raised the listener concerns with the newsroom and Friday Mark Memmott, NPR's standards and practices editor, issued this guidance to the news staff:

"When interviewing officials who have left the White House about their time with the Trump administration or current issues involving the administration, it is important that we ask whether they signed non-disclosure agreements covering their work and what they can say about the president.

Many people in the administration have signed NDAs. While those NDAs may not be enforceable, we should know whether the persons we're interviewing feel bound by any restrictions about what they can say. If so, that is information that will inform our decision about whether to go ahead with an interview and is information we need to share with our audience if we do proceed. Consult with a DME [deputy managing editor] if you have questions.

Show producers and bookers: Ask the person, 'have you signed a non-disclosure agreement that restricts what you can say about your time in the administration or about the president?' If the answer is yes, follow up with 'do you feel bound by that agreement?' Other questions could follow, of course, to fill in details and help us make the decision about whether to go ahead."

The guidance leaves room for a guest who has signed an NDA to assert that she or he does not feel restricted in speaking; that's a matter of trust. If NPR decides to go ahead with such a guest, transparency would require that the NDA still be disclosed.

The newsroom should have caught this issue before the listeners raised it. But newsroom executives addressed it quickly when they were made aware of the problem, as best practices would dictate.

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