In a hearing to stop former national security adviser John Bolton
John BoltonJournalist Aaron Maté says Democrats are responsible for giving John Bolton publicity Federal judge appears skeptical of blocking Bolton book release McEnany: Trump likes to hire people with 'countervailing viewpoints' MORE from releasing his book, an exasperated Judge Royce Lamberth seemed to throw up his hands over demands for an injunction, saying that the horse “seems to be out of the barn.”
Lamberth was both right and wrong. He is right that an injunction makes little sense as the administration did nothing while the book was being printed and sent to warehouses and to the media. He is wrong that there is not a good option because there is. It would be to allow Bolton to sell the book, allow critics of President Trump
Donald John TrumpProtesters tear down, burn statue of Confederate general in DC US attorney in NYC who spearheaded probes of Trump allies refuses to leave as DOJ pushes ouster Trump to host 4th of July event despite pleas from lawmakers to cancel MORE to buy it, and allow the federal government to keep the profits.
For Lamberth, the case is a thorny one because Bolton clearly is in violation of his nondisclosure agreement, which includes an ironclad provision for approval prior to publication. I have signed such nondisclosure agreements for decades due to my national security work and, each time, I still swallow hard in reading the absolute language on review prior to publication. Moreover, the courts tend to defer to the classification claims of the executive branch.
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Bolton admits he did not receive that required approval because he believed, not without reason, that the administration was slowing the process to delay the book release before the election in November. Indeed, there is every indication that Bolton did exactly what the White House hoped he would do.
The administration did nothing as hundreds of thousands of copies of “The Room Where It Happened” were printed. If the book does contain sensitive classified information, it hardly seems credible that intelligence agencies believed the Russians would not dare try to breach a Barnes and Noble warehouse guarded by a single night watchman or, alternatively, just borrow a copy from any journalist in Washington.
Adding to this mystery, the book actually did pass a classification review, but it was suddenly subjected to a highly irregular secondary review. That duplicative review was performed by the National Security Council senior director for intelligence, Michael Ellis, who had been on the job only two months and declared portions of the book classified. The Justice Department admits Ellis did not have “original classification authority” until the day after he finished his review.
None of that supports the extraordinary act of prior restraint of a publisher, even if the court accepts the classification authority. Such prior restraint raises serious free-speech issues, particularly when the administration seeks to block the release of a book alleging that the president is unstable and unfit. It is even more problematic when the book is readily available not just to Russia's SVR but to NPR. After all, the day that Lamberth was considering an injunction against the book release, journalists like Fox’s John Roberts were standing in front of the White House reading from it. No one in the courtroom on Friday was unimpeachable. The solution, then, is to give them all what they richly deserve.
Bolton will get his book released despite violating his trust with the president, his express promise under the NDA, and federal classification laws. For that success, Bolton could lose his profits and even his liberty. By waiting for Bolton to bolt, the Justice Department gave him just enough rope to hang himself. Given the prior notice of classified content, it could bring a criminal prosecution under the Espionage Act, though such prosecutions are rare and difficult. The real goal, however, would be the profits, and it has happened before. In 2016 former Navy Seal Matt Bissonnette, using the pen name "Mark Owen," wrote “No Easy Day,” about the raid that killed Osama bin Laden. He had to pay the federal government a reported $6.8 million to avoid prosecution.
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Likewise, in Snepp v. United States, the Supreme Court considered a book by Frank Snepp, who signed an NDA as part of his CIA employment but later, without approval, published a book about CIA activities in South Vietnam. The court ruled that he should lose his profits and described the case in a way that should concern Bolton about positions of trust: “Snepp’s employment with the CIA involved an extremely high degree of trust … Few types of governmental employment involve a higher degree of trust than that reposed in a CIA employee with Snepp’s duties.” An obvious example of one of the few jobs with a higher degree of trust would be the national security adviser.
So the Justice Department could threaten prosecution while settling for the profits, which would leave Bolton with much acclaim and few assets. Worse, Republicans despise him for writing a tell-all book and Democrats hate him for refusing to testify during Trump's impeachment (as well as years of partisan controversy).
For Trump, Bolton's book will join a towering pile of accounts from former top aides accusing him of virtual lunacy. Trump already has responded with the now-standard vicious personal attack on a former top aide or cabinet member, leading CBS's White House correspondent to ask: “Why do you keep hiring people that you believe are wackos and liars?”
That is why Lamberth should refuse the injunction. Everyone will get exactly what is coming to them. Critics get another embarrassing insider account of the Trump administration. Trump gets to seize Bolton’s profits due to the violation of both his NDA and his trust. Trump can even boast that he found the only thing better than having Mexico pay for a border wall: having liberals pay for it, albeit indirectly, via Bolton's royalty payments going to the Treasury. And Judge Lamberth’s courtroom could be “the room where it happened.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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