Trump’s arbitration case against Omarosa is risky

The brawl between President TrumpDonald John TrumpOver 100 lawmakers consistently voted against chemical safeguards: study CNN's Anderson Cooper unloads on Trump Jr. for spreading 'idiotic' conspiracy theories about him Cohn: Jamie Dimon would be 'phenomenal' president MORE and his former campaign and White House aide Omarosa Manigault NewmanOmarosa Onee Manigault NewmanWoodward book breaks 93-year publishing record Stormy Daniels announces new tell-all book: 'Full Disclosure' Women wield sizable power in ‘Me Too’ midterms MORE appears destined for a legal forum, but not in the regular courts. On Tuesday, the Trump campaign filed a demand for arbitration against Manigault Newman.

Arbitration is a form of dispute resolution in which the parties agree that their grievances will be resolved by private “judges,” typically, practicing attorneys — and not by publicly elected or appointed judges in the regular courts. Evidently, the Trump campaign is relying on an arbitration provision in a nondisclosure agreement that Manigault Newman signed with the Trump campaign.

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While Manigault Newman’s nondisclosure agreement is not publicly available, other nondisclosure agreements signed by Trump campaign workers, and on which hers may have been based, prohibit the campaign worker from disclosing “confidential information” about then-candidate Trump. The agreement includes information “about the personal life, political affairs and/or business affairs of Mr. Trump and/or of any Family Member.” The campaign worker also agrees not to disparage or demean “Mr. Trump, the Trump Company and any Family Member.”

Was the arbitration filing a result of well-reasoned legal judgment or the usual heat-of-the moment presidential impulse? Certainly, the president is angry at the reports of Manigault Newman’s book “Unhinged: An Insider's Account of the Trump White House” and her media interviews to promote it. Reaching deep into his bottomless bag of insults, Trump has called her “that dog” and “a crazed, crying lowlife.” But it’s hard to see what the arbitration will accomplish and it could backfire on the campaign — and on Trump.

What seems to have really infuriated the president and his team was Manigault Newman’s release of a tape to CBS News in which she claims to have secretly recorded three Trump campaign aides discussing in 2016 how to handle the public relations fallout if a tape from “The Apprentice” surfaced in which Trump used a racial slur. The tape of the campaign aides, Manigault Newman asserts, supports her earlier allegation that Trump used the N-word on “The Apprentice,” which Trump hosted and on which she had appeared as a contestant.

On the tape, one of the aides is heard saying, ″I am trying to find out at least what context it was used in to help us maybe try to figure out a way to spin it.” It hardly proves that an N-word tape exists and the aides dispute that they were ever aware of an “Apprentice” recording of Trump using a racial slur. But the Trump campaign, clearly unhappy with the N-word uproar, filed its arbitration demand the same day that tape aired on CBS.

Assuming that all campaign employees signed the same nondisclosure agreement, its terms allowed the Trump campaign to either file for arbitration or bring a lawsuit in court against Manigault Newman. In general, arbitrations are confidential, supposedly fast and efficient, and discovery, such as document requests and depositions, can be limited or even precluded by the arbitrators. So, from the Trump campaign’s point of view, arbitration offers a better opportunity to control publicity and prevent intrusive discovery by Manigault Newman.

The Trump campaign could regret its decision. Most arbitrators do not have the experience of full-time judges, they are not bound by strict rules of evidence or procedure, and their decisions for all practical purposes are unreviewable by courts, who do not like to intervene in an arbitration absent some glaring injustice. In any arbitration there is the potential for, well, arbitrariness, especially in a politically charged case like this one. 

So, notwithstanding the emphasis on efficiency in an arbitration, Manigault Newman might get some running room from the arbitrators. For example, she could seek and obtain permission to serve a subpoena on “The Apprentice” for any tapes of Trump making racial slurs. She might assert her own damage claims against the campaign and win a monetary award. It’s not clear that the Trump campaign suffered any damages from her disclosures and the arbitrators may not even render an award in the campaign’s favor. If nothing else, the arbitration filing has been a publicity boost for Manigault Newman’s book. 

The Trump campaign initiated the arbitration but Manigault Newman, as she counts her royalties, may yet have the last laugh.

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.