Federal judge on blocking Bolton's book: "The horse, as we used to say in Texas, seems to be out of the barn”

I don’t know why I used a photo of Bolton smiling for this post. Given how most of today’s court hearing went, it should have been one of him frowning.

Or opening his wallet and handing Bill Barr some money.

But on the basic issue of whether the government can stop his book from being published next Tuesday, sure, he’s likely to win there. Which we already knew.

A federal judge expressed doubt Friday he could stop the upcoming publication of the book by former national security adviser John Bolton.

“The horse, as we used to say in Texas, seems to be out of the barn,” Judge Royce Lamberth of the DC District Court, said during a hearing Friday. “It certainly looks difficult to me about what I can do about those books all over the country.”

“There is nothing that Ambassador Bolton can do to stop the book from becoming public on June 23; indeed, it is already public,” said his lawyer, Charles Cooper, during the hearing, pointing to the fact that a CBS reporter actually had the book in her hand yesterday while questioning Trump. Some 200,000 copies are already scattered around the world in warehouses and at media outlets that have received freebies for review. “The speech has been spoken, it cannot be unspoke,” Cooper warned. Lamberth’s not going to blow up the taboo against prior restraint for a book that’s basically already in circulation.

And the DOJ knows it. They’re not seeking to block the book because it’s standard practice or they think they have a good case. They’re seeking to block it because their boss is moody and doesn’t respect First Amendment norms when they don’t serve his interests. “Once again what you’re seeing here is the administration — at the president’s urging, directly or indirectly — using their enormous law enforcement power to go after someone who the president doesn’t like and who is a critic,” said former DOJ official Ben Berwick. Lamberth sounded suspicious of Trump’s influence in this matter too, asking the DOJ lawyer at one point, “Did the President instruct any intelligence officials to make portions of the book classified?” (The lawyer said he didn’t know.) Bolton’s likely to win on the TRO claim.

But. But. But. The DOJ’s underlying claim against him, that he breached his contract with the government by publishing his book before the National Security Council had finished vetting it, is much stronger. (We already knew that too.) Lamberth put Cooper on the hot seat about it during today’s hearing:

Lamberth made plain that he thought Bolton acted rashly and in violation of his obligations when he gave the go- ahead for publication of his book in the absence of a formal sign-off from the White House.

When Bolton’s attorney, Chuck Cooper, asserted that Bolton had followed his legal obligations “not just in spirit but to the letter,” Lamberth shot back: “No, he didn’t.”

“He had an obligation….once he invoked that process, he can’t just walk away,” the judge declared, adding, “He didn’t tell the government he was walking away. He just walked away and told the publisher ‘go publish.’”

Read this post if you missed it Tuesday for the tick-tock on how Bolton made the decision to publish. He went through several rounds of edits with an NSC classification official, Ellen Knight, who eventually told him that she had no further revisions for him. But … she never formally notified him that the review process was over. Bolton decided to move ahead with the book, apparently not realizing (or caring?) that a second round of classification review had been undertaken by another NSC official, Michael Ellis. Ellis claims to have found classified information that Knight missed. Which means Bolton’s book contains info that the public’s not supposed to see, and which the NSC never ultimately signed off on.

Lawyer and classification expert Mark Zaid listened in on today’s hearing and thinks things look bad for Bolton on the breach-of-contract claim. Because he didn’t wait to publish until he had the NSC’s formal approval in hand, he doesn’t have much of a leg to stand on:

The court probably won’t block publication of the book. But letting the DOJ seize Bolton’s profits? Sure looking that way.

But. But. But. There are some wrinkles in the vetting process in this case that might work to Bolton’s advantage in court. Such as:

Bolton and Cooper suspect that the White House was slow-walking his manuscript to try to stop the book from coming out before the election, when it could hurt Trump. Having the NSC suddenly classify info that was already in the manuscript *after* the first round of vetting was finished might support that argument. If you were a Trump crony desperate to prevent the book from being cleared for publication, that’s one obvious thing you could do to put the brakes. “Wait! There’s newly classified information in here! Time for a second review.”

Speaking of the second round of review, the one conducted by Michael Ellis:

That seems irregular. Why was a manuscript written by someone with as much access to classified info as a former national security advisor being vetted by a guy who hadn’t even finished his classification training yet? That smells like maybe Ellis was put on the job because he could be counted on for political reasons to deliver an outcome favorable to Trump, which was slowing the book down. If Bolton and Cooper could prove that the second round of vetting by Ellis was conducted in bad faith, maybe that’ll convince Lamberth that formal authorization *should* have been granted after Knight’s review was finished and was improperly withheld for political reasons.

Zaid sounds skeptical, though. “Ellis still had authority & that is what counts,” he tweeted about the revelation that Ellis hadn’t finished his training while reading the book. Plus, he notes, multiple top natsec officials have backed Ellis up by filing affidavits with the court claiming that there really was classified info in Bolton’s book, including TS/SCI — top secret sensitive compartmentalized info, the most precious kind. Zaid keeps coming back to the same point, that until Bolton was formally notified that it was okay to publish, it wasn’t okay to publish and he should have known that.

Although even Zaid finds some of the government’s sleight of hand here noteworthy:

This too:

Yeah, where’s Knight in all this? She’d know better than anyone if there was illicit political pressure applied inside the White House to slow the manuscript down. It’s curious that she didn’t submit an affidavit as part of the DOJ’s case, a fact that Judge Lamberth remarked upon during today’s hearing. “I’m glad you noticed that,” said Cooper in reply. If this heads to trial on the breach-of-contract claim, Knight might be the star witness. Whether she’s a witness for the prosecution or the defense remains to be seen.

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