A8 EZ RE THE WASHINGTON POST.MONDAY, AUGUST 10 , 2020
BY NICK MIROFFA recent surge in arrests along
the Mexican border has been
partly driven by soaring num-
bers of migrants trying to enter
the United States again and
again, as emergency pandemic
measures that rapidly “expel”
most detainees have had the
unintended consequence of al-
lowing them to try repeat illegal
crossings, according to two De-
partment of Homeland Security
officials with knowledge of the
unpublished statistics.
U.S. Customs and Border Pro-
tection said last week that the
agency recorded 40,746 deten-
tions in July, up 24 percent from
June and more than double the
figure from April, when 17,
were taken into custody. Since
implementing the emergency
measures, CBP officials have not
publicly disclosed the Border
Patrol “recidivism rate” — the
percentage of those detentions
that involves repeat crossers —
but the two DHS officials said the
figure now exceeds 30 percent.
That is up from 7 percent last
year.
In late March, as the novel
coronavirus spread, the Trump
administration began allowing
agents to quickly process mi-
grants and bus them directly
back to Mexico, instead of hold-
ing them in detention cells
where infections could multiply.
More than 90 percent of thosearrested by CBP are now sum-
marily “expelled” from the coun-
try under the emergency mea-
sures, including minors, asylum
seekers and others normally af-forded additional protections.
Migration levels fell sharply in
April after the measures were
implemented, but crossings have
jumped since then. U.S. officialsexpect the trend to continue as
economic conditions deteriorate
in Mexico and Central America
because of the pandemic. The
expulsion system affords mi-
grants multiple attempts to be
caught with little risk of deten-
tion or prosecution, and officials
said they worry that the recidi-
vism rate will grow.
“Without a deterrent, repeat
entries continue,” said one offi-
cial familiar with the statistics
who was not authorized to dis-
cuss them publicly.
Under normal circumstances,
migrants who repeatedly try to
cross can be charged with a
felony and prosecuted in federal
court, sometimes spending
months in U.S. jails before they
are deported. Border officials
insist that the prosecutions are
an effective deterrent and dis-
courage migrants from trying
again and again in hopes of
succeeding.
But with federal courts partly
shut down during the pandemic,
prosecutions have plunged. “No
consequences,” said another
DHS official familiar with the
statistics.
There is no indication that
CBP officials plan to scrap the
expulsion measures, which they
say are essential to protectingofficers, agents and other mi-
grants from exposure to the
virus, and to avoid outbreaks in
Border Patrol stations. Ten CBP
employees have died as a result
of contracting the virus, acting
commissioner Mark Morgan told
reporters last week. He faulted
migrants for disregarding public
health officials’ stay-at-home
guidelines.
The latest CBP figures show
that nearly 80 percent of those
detained last month were single
adults, and Mexican nationals
have again surpassed Central
Americans as the largest demo-
graphic group.
President Trump is citing his
immigration record as part of his
reelection pitch, and he has tout-
ed the emergency border mea-
sures as a major success. Immi-
grant advocates and critics of the
president say the United States
has closed the door to victims of
persecution and migrants fleeing
gangs and abusers, deporting
them at the risk of serious harm.
Despite the increases of the
past three months, arrests along
the border remain far below 2019
levels, when nearly 1 million
migrants were taken into custo-
dy during a surge of families and
children from Central America.
[email protected]Rapid returns to Mexico encourage migrants to repeat U.S. entry attempts
GREGORY BULL/ASSOCIATED PRESS
A Customs and Border Protection officer speaks with people as they cross from Mexicali, Mexico, into
Calexico, Calif., last month. The agency said last week that it recorded 40,746 detentions in July.American outreach in the cam-
paign and a communications of-
ficial at the White House. After
resigning from her government
job, Manigault Newman pub-
lished her book, “Unhinged,”
which described the president as
a racist and said that “his mental
decline could not be denied.”
In response, Trump tweeted
that “Wacky Omarosa already
has a fully signed Non-Disclosure
Agreement!” and that she was a
“dog” and a “crazed, crying low-
life.”
The Trump campaign then
sued Manigault Newman for al-
legedly violating an NDA, which
includes a non-disparagement
clause.
Manigault Newman’s attorney,
John M. Phillips of Jacksonville,
Fla., said the campaign lawsuit is
designed “to tie up Omarosa” and
send a message to anyone who
signed an NDA and is consider-
ing whether to speak out against
the president. He said his firm
has done legal work for Mani-
gault Newman worth $750,000,
underscoring the difficulty faced
by anyone in a similar position.
Phillips noted that Trump
tweeted that he is responsible for
suing people who he says violat-
ed their agreements. “Yes, I am
currently suing various people
for violating their confidentiality
agreements,” Trump tweeted in
August 2019. “Disgusting and
foul mouthed Omarosa is one.”
Phillips said that is an admis-
sion by the president that “this is
his lawsuit and they need it
washed through the campaign.”
Phillips said Trump’s comment
opened him to being deposed in
the case.
The campaign lawsuit was
filed by Trump’s attorney Harder,
who is involved in several non-
disclosure cases. Federal election
records show that the campaign
has paid Harder’s firm at least
$3.1 million, although they don’t
say how much of that is related to
the Manigault Newman case.
In an arbitration hearing on
the case, Harder said that even if
Trump “misspoke and was refer-
ring to the campaign,” the presi-
dent is “not a party to this case”
and should not be subject to a
deposition.
The next battle over a book is
likely to center on Cohen,
Trump’s former personal attor-
ney. He is writing a book about
Trump that is slated to be pub-
lished in September.
In his February 2019 testimo-
ny before Congress, Cohen
agreed with a congressman’s as-
sertion that Trump used NDAs
“to prevent people from coming
forward with wrongdoing.”
Cohen’s book is tentatively ti-
tled “Disloyal: The True Story of
Michael Cohen, Former Personal
Attorney to President Donald J.
Trump.” H e has said it “will
contain my first-hand experienc-
es and observations based on my
decade-long employment and re-
lationship with Mr. Trump and
his family, both before and after
he was elected President of the
United States.”
Trump’s attorney Harder sent
Cohen a letter warning that such
a book would violate Cohen’s
NDA with Trump, Cohen said in
court papers. But Cohen could
have the last word. He said, “I do
not believe that I ever signed
such an NDA.”
[email protected]Alice Crites contributed to this
report.The former White House offi-
cial, speaking on the condition of
anonymity to discuss internal
deliberations, said that Trump
“talked about nondisclosure
statements all the time. He would
talk about the power of these
NDAs in the civilian world. He
never could quite adjust to the
fact that he couldn’t terrorize
people with these NDAs.” The
official said he never signed one
and did not know anyone who
did.
The White House did not re-
spond to a request for comment.
Mark Zaid, a Washington law-
yer who offered to represent for
free anyone who signed an NDA
in the White House and now
wants to void it, said no one has
taken him up on the offer. But in
those cases in which a former
White House official had previ-
ously signed an NDA with the
campaign or a Trump-related
business, the campaign some-
times has taken legal action
against them.
For example, when Cliff Sims,
former White House director of
message strategy, wrote a book
called “Team of Vipers,” Trump
tweeted that Sims was “a low
level staffer” who “signed a non-
disclosure agreement. He is a
mess!”
The campaign filed an arbitra-
tion claim against Sims for violat-
ing his NDA. In turn, Sims sued
Trump to void the NDA, arguing
that he wrote about information
he learned as a federal official.
Sims’s lawyer was Zaid, who said
a settlement was reached that he
is not allowed to discuss. Sims
did not respond to a request for
comment.A bitter case
One of the bitterest cases re-
volved around the 2018 publica-
tion of a book by Omarosa Mani-
gault Newman, a former contes-
tant on Trump’s reality television
show who was director of Africanwas then Donald Trump’s per-
sonal attorney. Trump at one
point said he knew nothing about
the agreement, which The Post’s
Fact Checker declared was “a lie.”
Cohen later said in court that he
was reimbursed by the Trump
Organization for the payment to
Daniels and that Trump knew
about it.
Trump was so enamored of
NDAs that, as he sought the
presidency four years ago, he told
The Post that he planned to
require anyone who worked for
him in the White House to sign
similar agreements.“When people are chosen by a
man to go into government at
high levels and then they leave
government and they write a
book about a man and say a lot of
things that were really guarded
and personal, I don’t like that,” he
said.
Several versions of an NDA for
White House officials were draft-
ed, including one that imposed a
$10 million penalty, The Post has
reported. But, unlike in the cam-
paign, where everyone was ex-
pected to sign such a contract, it
is not clear how many people
agreed to them in the White
House, especially after the early
days of the administration.
When Trump would bring up
the issue, top aides told him that
NDAs wouldn’t be viable in the
federal government, which al-
ready imposed restrictions on
the release of classified informa-
tion, according to a former senior
White House official.partment said that Bolton “has
been unjustly and materially en-
riched — to the tune of $2 million
— by information he had no right
to release.”Ivana Trump’s NDA
Trump appears to have insti-
tuted his practice of requiring
NDAs shortly after one of his
former casino executives, Jack
O’Donnell, published an explo-
sive 1991 book titled “Trumped!,”
which exposed failings in
Trump’s personal and business
lives. In a 2016 interview with
The Post, Trump said he believedO’Donnell had signed an NDA
and promised to provide a copy
to a reporter, but he never fol-
lowed up. O’Donnell said he nev-
er signed such a document.
“I know for a fact that shortly
after it became public that my
book was coming out, he began
making all employees at the casi-
no sign NDAs,” O’Donnell said.
Around the same time that
O’Donnell’s book was published,
Trump divorced his first wife,
Ivana. Trump’s lawyer Jay Gold-
berg said in an interview that he
instituted a clause in the settle-
ment that forbade Ivana Trump
to disclose details or speak nega-
tively about her former spouse.
Ivana Trump said in a brief
telephone conversation, “I don’t
talk about my ex-husband.”
During the 2016 campaign,
adult-film actress Stormy Dan-
iels signed an NDA in exchange
for a $130,000 payment, a deal
arranged by Michael Cohen, whopeople who signed various NDAs
to tell their stories.
Donald Trump has long used
NDAs, Mary Trump said, as a
means of wielding “his power, his
position and his money and his
apparently endless supply of law-
yers to run out the clock. Or just
to outspend people who can’t
afford it. And I think it’s absolute-
ly being used as a weapon to
advance his own agenda.” She
said anyone running for presi-
dent should be required to void
any NDAs so that they can be
fully vetted.
Her lawyer said the willing-
ness of law firms such as his to
defend those who signed confi-
dentiality agreements could be a
turning point in encouraging
people to speak out.
“Individuals who signed NDAs
have seen that there are lawyers
and organizations who will come
out and protect them and defend
their First Amendment rights,
and therefore they are less fearful
of coming forward and speaking
about issues of public concern,”
said Theodore Boutrous Jr., who
has worked for free for the past
two years for Mary Trump.
Earlier this summer, President
Trump’s Justice Department
tried to stop the publication of a
book by his former national secu-
rity adviser John Bolton, who
was subject to an agreement with
the federal government not to
disclose classified information
but did not sign an NDA with
Trump.
The government’s lawyers
asked a court to block publica-
tion, but a federal judge ruled
that the book had already leaked
and thus the effort was moot.
Last week, the Justice Depart-
ment filed court papers saying
Bolton “never received written
authorization” that a review for
classified information had been
completed, and the government
sought to seize Bolton’s earnings
from the book. The Justice De-judgment in the case, the former
campaign worker, Jessica Den-
son, said the campaign sought a
$1.5 million claim against her for
violating an NDA. She said that
came after she filed a lawsuit
alleging sex discrimination by
campaign officials. (That sepa-
rate case is ongoing.)
“These NDAs are representa-
tive of the levers of fear that this
campaign and administration
wield over people,” Denson told
The Washington Post. “And if this
lever of these NDAs is lifted, it is
significant not only for the direct
effect it has on people who have
signed it, but for a general envi-
ronment of people who are afraid
to speak out.”
Under her agreement, Denson
was not allowed to disparage
Trump during her time with the
campaign “and at all times there-
after,” and she cannot disclose
whatever “Mr. Trump insists re-
main private or confidential,” as
defined by him.
Denson’s attorney, David
Bowles, said that he and his legal
colleagues hope to win the case
before Election Day, enabling
hundreds of people who may
have signed similar agreements
to have the contracts voided and
emboldening them to speak out
about Trump.
“You can’t stop people from
criticizing political candidates,”
Bowles said. “It is the heart of the
Constitution and free speech.”
The Trump campaign has bat-
tled Denson for more than two
years and paid nearly $1 million
to a law firm involved in the case,
according to federal election re-
cords, although it is not clear
how much is related to the law-
suit or other legal advice. A
representative of the firm, La-
Rocca Hornik Rosen & Green-
berg, did not respond to a request
for comment. The Trump cam-
paign also did not respond to a
request for comment.
In its response to Denson’s
request for summary judgment,
Trump’s legal team said that
Denson’s lawsuit is an effort to
get out of a “standard business
confidentiality agreement” a nd
that the agreement has not
stopped Denson from criticizing
Trump.
The case is just one of several
legal battles in which the cam-
paign or the Justice Department
is seeking either to penalize peo-
ple it says have violated NDAs or
to prevent future disclosures.
The NDAs typically are part of a
private employment contract,
and thus it is unknown how
many people have signed them
directly with Trump, his compa-
ny, his campaign or other entities
with which he is allied.
Trump’s family tried to stop
the publication this summer of a
tell-all book by his niece Mary
Trump. President Trump told Ax-
ios that his niece was “not al-
lowed” to write the book, and his
lawyer Charles Harder filed
briefs on behalf of Trump’s
younger brother, Robert, in an
effort to block it. Robert Trump
said in court papers that Mary
Trump was prohibited from pub-
lishing such a memoir because
she signed a confidentiality
agreement in a 2001 inheritance
case. Harder did not respond to a
request for comment.
Mary Trump said in an inter-
view that she hoped her willing-
ness to speak out against Presi-
dent Trump would encourage
AGREEMENTS FROM A
Lawsuit targets Trump’s reliance on nondisclosure deals
ALLISON ZAUCHA FOR THE WASHINGTON POST
Jessica Denson, i n front of a mural by Richard Haines titled “Celebration of our Homeland” at the Federal Building in Los Angeles, said
that under her agreement she was not allowed to disparage Trump during her time with the campaign “and at all times thereafter.”“You can’t stop people from criticizing
p olitical candidates. It is the heart of the
Constitution and free speech.”
David Bowles, attorney for Jessica Denson