The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A very detailed and thoughtful item by Profs. Jack Goldsmith & Marty Lederman at Just Security; it's a factually and legally complicated area, which I don't know enough about, but on which they are experts. An excerpt from the opening:
The U.S. government filed a civil suit on June 17 against former National Security Advisor John Bolton. It primarily seeks (i) an injunction against the planned June 23 publication of Bolton's book, The Room Where it Happened: A White House Memoir; and (ii) a "constructive trust" that would give the United States the right to all of Bolton's profits from the book. The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia.
This post explains the case and offers our initial thoughts. The big news to us about the government's case is that it's weaker than we expected. We should emphasize, however, that these views are preliminary and incomplete. The case implicates a complex and in some ways unsettled area of law. [UPDATE: Less than an hour after we published this post, the government filed a motion for Judge Lamberth to issue a Temporary Restraining Order–one that would prohibit not only Bolton himself, but also Simon & Schuster and "[c]ommercial resellers further down the distribution chain, such as booksellers," from selling or distributing The Room Where it Happened. The classified and unclassified declarations filed with that motion might (or might not) affect the outcome of the case. We hope to discuss this important development in a follow-up post soon.]
The Relevant Contract (Nondisclosure Agreement) Terms
The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact. As the government's complaint describes, the contracts in question are "nondisclosure agreements" (NDAs) that Bolton signed on April 5, 2018, when he entered government service as National Security Advisor. These NDAs are included as attachments to the complaint….
The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, i.e., a "security clearance." Two are pertinent here. First, Bolton agreed that he must never "divulge classified information to anyone" unless he either "officially verifies] that the recipient has been properly authorized by the United States Government to receive it" or he's received "prior written notice of authorization [to divulge it] from the United States Government" entity responsible for its classification. Second, he agreed that if he's "uncertain about the classification status" of any information, he must "confirm from an authorized official that the information is unclassified before [he] may disclose it" to anyone not authorized to receive it. We'll refer to this second obligation as the SF-312 prepublication review requirement, although, as we explain below, it's actually something less than that—it's more like a simple "confirmation" requirement.
The second NDA, Standard Form 4414, set the conditions of Bolton's access to a more sensitive subset of "Special Access Programs" classified information, commonly known as Sensitive Compartmented Information (SCI). It requires Bolton to submit to a security review by the National Security Council (NSC) "any writing . . . that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure." It further provides that he "will not disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until I have received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted." We'll call this the SF-4414 prepublication review requirement….