IN THE early weeks of Donald Trump’s presidency, the White House was a leaky ship. So Mr Trump seems to have imported a device often used in the private sector, but never before employed in the executive branch: sweeping gag orders covering everything—from secrets to mere gossip—picked up at work. Naturally, a draft agreement has leaked to the Washington Post. It suggests that staffers who improperly disclose confidential information would be liable for huge fines, and even bars future novels from mentioning White House work. The scheme, conceived in chaos, has plainly been ineffective in its intended purpose. The administration remains shambolic and sieve-like.

These sorts of non-disclosure agreements (NDAs) are probably both unenforceable and unconstitutional. Because White House staff are employed by the government, their speech is protected by the First Amendment. “Information about public service belongs to the public,” says Ben Wizner of the American Civil Liberties Union. “The idea that a president could cut off this vital source of information is anathema to the constitution.”

Government employees and contractors who deal with classified or top-secret documents are already bound by NDAs authorised by Congress. The threat of espionage charges usually ensures compliance, but the government can also seize “all royalties, remunerations, and emoluments” resulting from the unauthorised publication of classified materials. Every so often the Central Intelligence Agency uses the proviso to seize the profits of a book by an incautious ex-spook.

The draft NDA from Mr Trump’s White House differs by preventing disclosure of “all non-public information” even after he leaves office, and by proposing an eye-watering penalty of up to $10m per violation. The financial penalties are “preposterous”, says Alexis Ronickher, a partner at Katz, Marshall & Banks, who has represented whistleblowers. “I’ve never seen anything like $10m, quite frankly,” she says. The final text of the NDAS has not yet leaked—the White House has not denied their use, but disputes the dollar amount. That suggests somebody took sensible advice. David Super, a law professor at Georgetown University, says the chances that a judge would enforce such an NDA are nearly nil.

Non-disclosure agreements are increasingly used by political campaigns, which are treated as private organisations legally. Hillary Clinton’s presidential campaign in 2008 may have been one of the first (perhaps not coincidentally, that campaign was inept and fractious). A senior official for George W. Bush’s and John McCain’s presidential campaigns says he did not have to sign an NDA. Nor did Matt Bennett of Third Way, a think-tank, who worked on Democratic presidential campaigns from 1988 to 2004. Today, NDAs seem to be preferred only by fretful candidates. During the campaign of 2016 neither Ted Cruz nor Marco Rubio required them, according to former campaign operatives. All paid staff on Mrs Clinton’s campaign signed NDAs as part of their starting paperwork. Mr Trump went the extra step of requiring them of volunteers.

He has kept a campaign pledge to run America’s government as he ran his company. In his past life as a litigious businessman-cum-showman, NDAs proved useful. They seem less so now. Stormy Daniels, the porn star with whom Mr Trump allegedly had an affair, has been muzzled by one such agreement, though she is furiously trying to shake it off. Karen McDougal, a former Playboy model who also claims to have had a Trumpian tryst, is suing to escape a similar agreement. When Mr Trump was still in his gilded tower, silence could usually be bought. As in so many other ways, government is proving tougher.