I’m sure ideally they’d want to block publication and spare the president from embarrassing revelations from a former aide with just a few months to go before the election. But courts don’t like prior restraint. A judge isn’t going to let the White House sit on Bolton’s manuscript forever under the pretext of vetting it to make sure that it doesn’t include classified information, especially when the electoral motive for slow-walking it is so obvious. So instead of seeking an injunction to halt publication, the DOJ’s going to fight on more favorable terrain: They’re seeking to take the profits from Bolton’s book on grounds that he violated his agreement with the government that he wouldn’t publish anything about his time as National Security Advisor until the pre-publication natsec review process was completed. It hasn’t been completed in this case, so they want him to pay up.
And, depending upon what’s in the book, they might just seek criminal charges against him.
Whether that’s satisfactory to the president is a separate question. I’m sure Trump would relish watching Bolton lose his payday from writing the book and would relish even more seeing him hauled into court with prison time on the line. But unless the DOJ files for a TRO soon — the book’s scheduled to be published seven days from now — it’s going to come out and do whatever political damage Bolton is prepared to do. And thanks to today’s court filing, it’ll enjoy even more hype when it arrives than it would have otherwise. You know what happens when you tell the public that something’s too dangerous for them to read//watch/listen to:
UPDATE: It’s working pic.twitter.com/Ll7Gte4cSl
— Andrew Feinberg (@AndrewFeinberg) June 16, 2020
Details from CNN:
The suit, filed in Washington, DC, federal court, alleges that Bolton’s 500-plus page manuscript was “rife with classified information,” and prosecutors say that Bolton backed out of an ongoing White House vetting process for the book that he’d been obligated to do as a result of agreements he’d signed.
“(Bolton) struck a bargain with the United States as a condition of his employment in one of the most sensitive and important national security positions in the United States Government and now wants to renege on that bargain by unilaterally deciding that the prepublication review process is complete and deciding for himself whether classified information should be made public,” prosecutors write…
Bolton’s book has already shipped to warehouses ahead of its scheduled release. He has taped an interview with ABC slated to air Sunday. And a source close to him says he is intent on publishing the book as scheduled Tuesday, meaning he expects to deal with any ramifications from the administration in the aftermath, not before.
Interestingly, the complaint does request that the court stop publication of the book in its prayer for relief. But the court won’t hustle to consider that unless the DOJ files for a temporary restraining order and time’s a-wasting for them to do that with the national release just seven days away. Here’s the key bit:
Despite the language there about not releasing the book and asking the publisher to retrieve and dispose of any copies of the manuscript that might already be in the possession of third parties (i.e. Amazon warehouses), Bolton’s publisher, Simon & Schuster, isn’t a named defendant in the suit. Only Bolton is. That’s another sign that the DOJ recognizes that a legal effort to block publication would run into “Pentagon Papers” problems and ultimately fail, turning Bolton into a free-speech martyr in the process.
Bolton’s lawyer published an op-ed in the WSJ last week alleging that he dutifully complied with not one, not two, not three, but four rounds of pre-publication natsec review with the National Security Council’s senior official for that function, Ellen Knight. On April 27, after the fourth round, Knight told Bolton, “that’s the last edit I really have to provide for you.” Was that the end of the process? Here’s what Bolton’s lawyer, Chuck Cooper, says happened next:
Yet when Mr. Bolton asked when he would receive the letter confirming the book was cleared, Ms. Knight cryptically replied that her “interaction” with unnamed others in the White House about the book had “been very delicate” and that there were “some internal process considerations to work through.” She thought the letter might be ready that afternoon but would “know more by the end of the day.” Six weeks later, Mr. Bolton has yet to receive a clearance letter. He hasn’t heard from Ms. Knight since May 7.
Cooper notes various media reports about irregularities in the review process, such as White House counsel Pat Cipollone reportedly having been briefed on the manuscript during the impeachment trial. He also points to regulations that guide the process, which prohibit unnecessary delays “to prevent embarrassment to a person” and the exclusion of “information that does not require protection in the interest of national security.” He thinks the White House is trying to bog down the vetting in hopes of delaying publication of the book until after the election, when it’ll no longer be able to hurt Trump politically, and that they’re breaking the rules to do it.
Interestingly, the DOJ complaint confirms that Knight signed off on Bolton’s book: “On or around April 27, 2020, Ms. Knight had completed her review and was of the judgment that the manuscript draft did not contain classified information. Ms. Knight informed NSC Legal of the status of the review.” So why didn’t they give Bolton the green light to publish? The complaint claims that Michael Ellis, the NSC’s senior director for intelligence, then began a second review of the manuscript. “Based on Mr. Ellis’s position as Senior Director for Intelligence Programs, he routinely receives extremely sensitive intelligence reports and analysis that most members of the NSC staff, including Ms. Knight do not,” the DOJ explains. It would be … strange if Bolton and his lawyer weren’t informed up front that Knight’s review wouldn’t be the only review of the manuscript. Maybe they were informed and Cooper conveniently left that detail out? Or maybe Cooper’s right that the White House is slow-walking the book for political reasons and Ellis’s review is the pretext.
In any case, why wouldn’t the White House formally inform Bolton soon after May 7 that a second review had begun. Or did they?
Either way, at some point between May 7 and now, Bolton and Simon & Schuster concluded that the review process was over and sent the book for printing. The DOJ saw a news report on June 7 that the book was now set to come out on June 23; the NSC’s legal advisor promptly contacted Bolton’s lawyer the next day to warn him not to do that, to no avail. Now here we are. Who wins? According to Mark Zaid, a lawyer well-known for representing whistleblowers against the government, this one’s a slam dunk — for the DOJ.
“This is a routine civil action for breach of contract for (Bolton) violating his non-disclosure agreement, which his own lawyer has admitted he did,” Zaid said. “Absent something extraordinary happening, Bolton should be prepared to take out his check book and may never see a dime in profit. The lawsuit also asserts Bolton has released classified information which potentially subjects him to criminal prosecution under the Espionage Act.”…
“Bolton is in serious trouble with at least a breach of contract, which is literally a hands down winner for the government,” Zaid said. “Bolton has an obligation before publication to receive approval from the government — a lack of approval breaches his contractual obligation and that has nothing to do with whether or not there’s one word of classified information in the book.”
If the review process wasn’t over, the review process wasn’t over. Bolton and Cooper are presumably going to argue that the government breached the contract first by failing to vet his manuscript in good faith, pointing to the evidence that they were slowing down the review to protect Trump from “embarrassment.” Lawyer Brad Moss has an answer to that, though:
I'm seeing some people questioning if Bolton can argue bad faith in the NSC prepublication process because the first reviewer internally signed off on the revised manuscript, but then a supplemental review disagreed.
Short answer? Not at this point. He should have sued.
— Bradley P. Moss (@BradMossEsq) June 16, 2020
Why didn’t Bolton sue after he started getting radio silence from Knight and the NSC about the status of his manuscript?
Zaid noted elsewhere that he always inserts a clause in book deals that gives the author ultimate control over whether to publish or not. If Bolton’s contract with Simon & Schuster doesn’t have that clause then Bolton is at S&S’s mercy. He might ask them to hold the book back because he’s afraid to go to prison — and they might blow him off because they’ve got a moneymaker in their hands. Although it’s hard to believe Bolton and Cooper didn’t foresee this outcome when they decided to move ahead with printing the book. They must have priced in this risk and chosen to move forward anyway.
Here’s Trump yesterday suggesting that all conversations between him and his advisors are “highly classified,” which is not true. If that’s the standard Ellis is using in reviewing the book then it’ll only strengthen Bolton’s case that the long review process is dilatory and abusive.
‘That’s highly classified information. Even conversations with me, they’re highly classified…I would consider every conversation with me as president highly classified’ – Trump suggested former National Security Adviser John Bolton could face criminal charges over his book pic.twitter.com/fsPJCpULkE
— NowThis (@nowthisnews) June 16, 2020