It’s impossible for me to believe that the Justice Department, even a Justice Department led by Bill Barr, would deem this futile effort worthy of its time. It has to be that Trump was dissatisfied with the more modest complaint filed against Bolton by the DOJ a few days ago and put political pressure on them to go nuclear by seeking to block publication of Bolton’s book altogether.
Which would prove Bolton’s argument, ironically, that the president consistently places his own personal interests above civic norms and obligations. Such as, in this case, the country’s cultural and institutional antipathy to prior restraint.
The complaint filed by the DOJ a few days ago claimed that the White House knew by June 7 that Bolton and Simon & Schuster were planning to publish his book on June 23. Why didn’t they seek a TRO immediately instead of waiting until six days before the publication date? The media is already reporting on the contents of the book this week; the WSJ published a lengthy excerpt from it yesterday, for cripes sake. Thousands of copies are sitting in warehouses, ready to be delivered next Tuesday. It’s awfully late in the day for this.
Another question: If the plan here was always to block publication of the book, why didn’t the DOJ name Simon & Schuster a defendant in the complaint they filed against Bolton a few days ago? That seemed to be a concession by the Department that they hadn’t a prayer of stopping it from being released, only of potentially seizing Bolton’s profits from it.
Maybe the Department knew that the TRO would never be granted and didn’t consider filing one until it had its arm twisted by the president at the last minute to fight Bolton with all weapons at its disposal. I’m just speculating, but that speculation is more plausible than Bill Barr thinking the federal judiciary is going to allow government censorship of a presidential critic in an election year by endorsing prior restraint.
On Wednesday night, prosecutors asked U.S. District Judge Royce C. Lamberth of the District for a hearing Friday on the motion for a temporary restraining order and preliminary injunction against Bolton, “seeking to enjoin publication of a book containing classified information.”
The government argued that if the court enjoins Bolton, then its order should also bind his publisher, Simon & Schuster.
In a 37-page filing Wednesday, the Justice Department wrote, “Disclosure of the manuscript will damage the national security of the United States,” adding, “To be clear: Defendant’s manuscript still contains classified information, as confirmed by some of the Government’s most senior national-security and intelligence officials.”
The filing included declarations by four U.S. officials, including Michael Ellis, the National Security Council’s new senior director for intelligence, who held up approval of Bolton’s manuscript.
Ellis said that passages of the manuscript “reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the United States,” and provided six examples for the judge’s private review.
It’s interesting that natsec personnel are offering the judge concrete examples of information from Bolton’s book that would supposedly be too dangerous for the world to know but it’d have to be earthshaking stuff to justify blocking publication — and remember that the book has already been through one round of vetting with an officer at the National Security Council, who presumably would have caught any truly egregious material on the first pass-through. Even worse for the DOJ, the judge they drew in this case, Royce Lamberth, has been publicly critical in the past of excessive judicial deference to the executive branch on matters of classification. Asking him of all people to show deference in this case, when there’s an obvious political/electoral motive for the White House to slow-walk review of Bolton’s book, and when the DOJ is seeking to censor Bolton’s book, is asking an awful lot.
The president, who is very Not Mad about all this, isn’t helping his lawyers’ case either with his tweeting. But that’s par for the course.
The last thing you want if you’re a DOJ lawyer who’s about to argue in court that there’s no political vendetta involved in blocking Bolton’s book is to have the president badmouthing the guy endlessly on social media. Trump’s claims that the book is full of lies also undermines the Department’s case, ironically:
If all the revelations in the book about Trump are lies then there’s no leak problem and the book can go forward. Trump’s remedy in that case is to sue Bolton for defamation. If, on the other hand, the book needs to be censored — and Bolton potentially charged with a crime for leaking — because he shared classified information then the information in it has to be true. It’d be an amusing turn in this episode if the DOJ had to specify which claims about Trump are true but classified and which are lies but okay to publish.
You may remember from this post that attorney Mark Zaid, an expert in classification law, thinks the DOJ has a rock-solid case against Bolton on the breach-of-contract claim. The White House undertook to review Bolton’s manuscript for classified information; they never formally informed him that that process was complete before he and Simon & Schuster decided to publish. He thus broke his agreement with them. Case closed. If Bolton thought the White House was slow-walking the review process in hopes of pushing off publication of his book until after the election then he should have sued and made that claim instead of rushing to publish. (And for what it’s worth, Zaid says he’s had clients for whom the review process went on waaaaaay longer than the five months Bolton was subjected to. So much for the theory that they were slow-walking him.) But seeking to seize Bolton’s profits from the book after it’s been published is a very different legal animal from asking a court to block publication of the book altogether. Zaid is aghast that the DOJ would attempt to do that:
3) I can think of only one prior successful injunction. In 1979, in US v. Progressive, govt initially blocked art detailing how to build hydrogen bomb. In granting injunction, Judge basically said 1st Amendment of no use if everyone dead.
Turned out, info was already available.
— Mark S. Zaid (@MarkSZaidEsq) June 18, 2020
5)Even though Pentagon Papers case was litigated in about two weeks time from start to finish, 1971 is not 2020. I would be shocked this Motion would be decided, much less even briefed, in time to stop publication on Tues. That’s just not how book distribution system works.
— Mark S. Zaid (@MarkSZaidEsq) June 18, 2020
Courts detest government censorship as a core First Amendment violation. The normal course of action, and what I assume will happen here, is that Bolton’s book will be allowed to come out and then the DOJ can decide if it wants to file criminal charges against him. Barr and the entire DOJ team know it. So how’d they end up seeking an almost sure-loser TRO? Either something classified slipped through the first round of NSC vetting of Bolton’s manuscript that’s so explosive that the judiciary’s about to throw free-speech precedent out the window to bottle it up or the DOJ is so eager to show Trump that it’s doing everything in its power to harass Bolton that it’s willing to give censorship the ol’ college try in court.
And if they’re willing to do that, they’ll almost certainly have to pursue him criminally once the current matter has proven. POTUS would be so disappointed if they didn’t.
Here’s Bolton telling ABC News in an interview set to air in full on Sunday that Trump’s incompetent and unfit for office. Is the court going to censor that interview too?
NEW: "I don't think he's fit for office," former national security adviser John Bolton says of Pres. Trump. "I don't think he has the competence to carry out the job."
— ABC News (@ABC) June 18, 2020