Free Speech

Judge Royce Lamberth Condemns John Bolton's Conduct, But Declines to Block Publication of Bolton's Memoir

"By the looks of it, the horse is not just out of the barn—it is out of the country."

|The Volokh Conspiracy |

From Judge Royce Lamberth's opinion this morning in United States v. Bolton:

{Defendant [former National Security Advisor John] Bolton has gambled with the national security of the United States. He has exposed his country to harm and himself to civil (and potentially criminal) liability. But these facts do not control the motion before the Court. The government has failed to establish that an injunction [against Bolton's publishing his memoir] will prevent irreparable harm. Its motion is accordingly DENIED.}

Bolton disputes that his book contains any … classified information and emphasizes his months-long compliance with the prepublication review process. He bristles at the mixed messages sent by prepublication review personnel and questions the motives of intelligence officers.

Bolton could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion. Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. This was Bolton's bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong.

The government submitted classified declarations for the Court's ex parte review in camera. On June 19, 2020, the Court held a sealed ex parte hearing for further in camera review with the government. Upon reviewing the classified materials, as well as the declarations filed on the public docket, the Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations.

Bolton was the National Security Advisor to the President. He was entrusted with countless national secrets and privy to countless sensitive dealings. To Bolton, this is a selling point: His book is entitled The Room Where It Happened. He rushed to write an account of his behind-closed-doors experiences and produced over 500 pages of manuscript for review. Not four months later, Bolton pulled the plug on the process and sent the still-under-review manuscript to the publisher for printing.

Many Americans are unable to renew their passports within four months, but Bolton complains that reviewing hundreds of pages of a National Security Advisor's tell-all deserves a swifter timetable. Access to sensitive intelligence is rarely consolidated in individuals, and it comes as no surprise to the Court that the government requested several iterations of review headed by multiple officers. But what is reasonable to the Court was intolerable to Bolton, and he proceeded to publication without so much as an email notifying the government.

The court noted that the First Amendment doesn't forbid the requirement of prepublication review, for people who have been given access to classified material:

This Circuit upheld the Central Intelligence Agency's prepublication review scheme in McGehee v. Casey (D.C. Cir. 1983). There, the Circuit held that "the government has a substantial interest in assuring secrecy in the conduct of foreign intelligence operations." First Amendment rights are preserved so long as restrictions "protect a substantial government interest unrelated to the suppression of free speech," and "the restriction [is] narrowly drawn to 'restrict speech no more than is necessary to protect the substantial government interest.'" The Supreme Court agrees: "[T]his Court's cases make clear that—even in the absence of an express agreement—the CIA [can] act[] to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment." Snepp v. United States (1980). For the purposes of resolving this motion, the Court is satisfied that the government's prepublication review of Bolton's book fell within these bounds.

The NDAs barred publication of classified materials. Bolton likely published classified materials. The government is likely to succeed on the merits….

But the court declined to issue an injunction, because:

According to Simon & Schuster Chief Executive Jonathan Karp's affidavit, "[m]ore than 200,000 copies of the Book have already been shipped domestically … to retail booksellers large and small, from large national chains and online entities to a host of small, independent, booksellers." Indeed, "thousands of copies of the Book [have been shipped] to booksellers around the world, including in Continental Europe, India and the Middle East." Reviews of and excerpts from the book are widely available online. As noted at the hearing, a CBS News reporter clutched a copy of the book while questioning the White House press secretary. By the looks of it, the horse is not just out of the barn—it is out of the country.

Counsel for the government still press for an injunction. In its motion, the government asks this Court to order Bolton "to instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party." For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir.

If nothing else, the government argues, an injunction today would at least prevent any further spread of the book, such as limiting its audiobook release. The argument is unavailing. In taking it upon himself to publish his book without securing final approval from national intelligence authorities, Bolton may indeed have caused the country irreparable harm. But in the Internet age, even a handful of copies in circulation could irrevocably destroy confidentiality. A single dedicated individual with a book in hand could publish its contents far and wide from his local coffee shop. With hundreds of thousands of copies around the globe—many in newsrooms—the damage is done. There is no restoring the status quo….

Here's the court's longer summary of the facts:

[Bolton's] book, a political memoir reflecting on Bolton's tenure as National Security Advisor, has been printed, bound, and shipped across the country. It is due for national release on Tuesday, June 23, 2020. The government insists that the book contains sensitive information that could compromise national security and alleges that Bolton prematurely halted his prepublication review process in order to proceed to publication. Defendant Bolton characterizes his actions differently—he emphasizes his substantial and extensive compliance with the review process and dismisses the government's recent objections to his manuscripts as pretextual and politically motivated.

While Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy….

The government anticipates that public officials will seek to publish accounts of their experiences. When those officials have access to sensitive information that implicates national security, the government guards that information by conditioning employment on a guarantee of nondisclosure. Bolton accepted this condition of employment and executed multiple nondisclosure agreements with the government. In one agreement, Standard Form 312, Bolton agreed that he would "never divulge classified information to anyone unless: (a) [he has] officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) [he has] been given prior written notice of authorization from the United States Government … that such disclosure is permitted."

In the event Bolton was "uncertain about the classification status of information, [he was] required to confirm from an authorized official that the information is unclassified before [he] may disclose it." Violation could result in "assign[ing] to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of [SF 312]." Bolton agreed to abide by the restrictions in SF 312 "[u]nless and until [he is] released in writing by an authorized representative of the United States Government."

Another agreement, Form 4414, detailed conditions Bolton must follow to gain access to highly classified sensitive compartmented information ("SCI"). Here, Bolton agreed to "submit for security review … any writing or other preparation in any form … that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that [he has] reason to believe are derived from SCI, that [he] contemplate[s] disclosing to any person not authorized to have access to SCI or that [he has] prepared for public disclosure." Bolton promised "not [to] disclose the contents of such preparation with, or show[] it to, anyone who is not authorized to have access to SCI until [he had] received written authorization … that such disclosure is permitted."

In December 2019, Bolton submitted a draft manuscript to the NSC for prepublication review. Over the following four months, Bolton worked to incorporate the edits he received from the Senior Director for Records Access and Information Security Management at the NSC, Ellen Knight. These edits were iterative and extensive, and on April 27, 2020, Knight communicated to Bolton that she no longer considered the manuscript to contain classified material. Bolton claims that he and Knight discussed the possibility that the final written authorization might be ready as early as that afternoon.

The written authorization did not issue, and Knight soon clarified that the process was ongoing. Weeks passed without further communication between Bolton and the government. On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to Bolton that claimed the manuscript still contained classified information. By that point, Bolton had already delivered a final manuscript to his publisher for printing and shipping, without written authorization and without notice to the government….

And here are the terms of the injunction that the government sought:

[1.] Enjoin Bolton from "proceeding with the publication of his book in any form or media without first obtaining written authorization from the United States through the prepublication review process;"

[2.] Require Bolton to "ensure that his publisher and resellers receive notice that the book contains classified information that he was not authorized to disclose;"

[3.] Require Bolton to "instruct his publisher to delay the release date of the book pending the completion of the prepublication review process and authorization from the United States that no classified information remains in the book;"

[4.] Require Bolton to "instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party;"

[5.] Enjoin Bolton from "taking any additional steps toward[s] public[ly] disclosing classified information without first obtaining authorization from the United States through the prepublication review process;" and

[6.] Require Bolton to "ensure that his publisher and resellers receive notice of [the injunction]."

The government does not name Simon & Schuster as a defendant in the case. Instead, the government seeks to secure Simon & Schuster's compliance by way of enjoining Bolton. Federal Rule of Civil Procedure 65(d)(2) instructs that an injunction or TRO binds not only the parties, but also "the parties' officers, agents, servants, employees, and attorneys," and "all other persons who are in active concert or participation with" the parties, if they receive actual notice of the order.

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  1. Offered without comment?

    #ConservativeCourage

  2. Is “authorization-shmauthorization” a legal term?

  3. Interesting legal strategy — why didn’t Trump go for the injunction before S&S had physically printed the book?

    Bolton has made a big mistake here — he’s thinking he will be treated like B/C Manning — that Biden will be elected this fall and that Biden will pardon him, like Obama pardoned Mannng.

    I think that Bolton is wrong on both counts — I don’t think that Biden will win, but even if he does, I highly doubt he will pardon Bolton. Not Bolton — whom the left despises.

    “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    Congress has declared war on terrorists, and one could argue that providing them access to classified information constitutes “giving them Aid.” (Tokyo Rose was convicted of treason.)

    Treason is now a capital offense if I am not mistaken — and there are a lot on both sides of the isle who’d love to see a leaker executed. Any leaker, just one to rein it in.

    So Bolton’s taking a bigger risk than he realizes. And could help Trump by saying “I didn’t want to drag us into more endless wars…”

    1. Well, I’m not a huge fan of the death penalty. But maybe liberals and conservatives could pelt him with rotten fruits? (I’m envisioning a naked Cersei Lannister walk of shame, or something along that line.)

      1. Probably more like the stoning in “Life of Brian.”

    2. Bolton has made a big mistake here — he’s thinking he will be treated like B/C Manning — that Biden will be elected this fall and that Biden will pardon him, like Obama pardoned Mannng.

      This assumes Bolton has committed a crime. There’s every indication that this has nothing to do with classified information and the administration is just trying to block publication of an embarrassing memoir.

      Congress has declared war on terrorists, and one could argue that providing them access to classified information constitutes “giving them Aid.” (Tokyo Rose was convicted of treason.)

      Treason is now a capital offense if I am not mistaken — and there are a lot on both sides of the isle who’d love to see a leaker executed. Any leaker, just one to rein it in.

      At this point your post devolves into incoherence. The standard for treason is incredibly high and leaking classified information comes nowhere near to reaching it, despite what the pundits may bloviate.

      1. This assumes Bolton has committed a crime. There’s every indication that this has nothing to do with classified information and the administration is just trying to block publication of an embarrassing memoir.

        Is the following from the judge what you mean by “every indication”?

        This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong.

        1. People who expect the Trump administration to be shown to have engaged in disingenuous, partisan abuse of procedure and authority in this matter — rather than Bolton shown to have engaged in criminal conduct — are people familiar with discovery.

          1. It’s the job of judges to see through disingenuous, partisan abuse of procedure and authority. I don’t assume that they have been hornswoggled unless there is more evidence than simply that Trump’s team was at the wheel.

            1. Wouldn’t discovery be limited to attorneys with security clearances?
              It has been with terrorism trials….

        2. And publishing classified information is worse than leaking it.

    3. “Interesting legal strategy — why didn’t Trump go for the injunction before S&S had physically printed the book?”

      Because the publisher didn’t have the level of security necessary to prevent hostile intelligence services from obtaining copies of the manuscript, I suppose, so it really IS true the security breach was a done deal when Bolton decided to send the manuscript to the publisher without waiting on the preclearance, as he was legally required to.

      I think the judge is actually right about that; Returning the books now would not cure the intelligence breach, so that can’t be a legal basis for forcing the publisher to call them back.

    4. Interesting legal strategy — why didn’t Trump go for the injunction before S&S had physically printed the book?

      Because Bolton didn’t tell the government that he was going to have the manuscript published as is instead of continuing to participate in the review process.

    5. Congress has declared war on terrorists, and one could argue that providing them access to classified information constitutes “giving them Aid.” (Tokyo Rose was convicted of treason.)

      One could argue any stupid thing one wants. One should not do so, if one does not want to be thought of as stupid.

  4. John Bolton has always wanted to bomb everyone. There is probably no war that he does not like.
    So, now he is good and, of course, Trump is still bad. The guy who wants to pull out troops is a Russian asset. Peace now? Never mind – get Trump.

    1. Johan,
      Who on earth is saying that “now [Bolton] is good?!?

      Obviously, not liberals–he is, and was, and will be, forever despised. There are many actual conservatives, conversely, who liked him and who continue to like him, true. But I don’t think that’s what you were saying, yes? I can’t think of anyone who used to think that Bolton was bad or evil or amoral, but now, is thinking that he’s actually a good person. Do you have one or two specific examples in mind? . . . I feel like you must, based on your post.

      Can you tell us to whom you’re referring?

      1. Why would the left believe Bolton?

        1. We don’t. Even liberal Republicans like me. I would not trust Bolton with the time of day. Now, of course this puts all of us in a dilemma…what to do when you have a pathological liar like Trump saying it’s raining, when you have a delusional clown like Bolton saying it’s not raining. Generally speaking, I guess one of them has to be telling the truth. But if Trump says Rain and Bolton says Sunny, my money is on mist, or fog, or something else that puts the lie to what either of them have told me.

        2. “The left” will have to speak for itself, but personally I’m just rooting for injuries.

  5. The court’s reasoning is “No, because TRUMP.” This will be a very bad precedent going forward. Well, the book will get published, but Bolton will be subject to civil and criminal penalties. Too bad. I met him once and liked him. I did not agree with him, but I always like being around people I disagree with…I learn more that way.

    1. The Grand Moff Tarkin: Which part of the court’s reasoning do you think is “No, because TRUMP”? It would be helpful if you pointed to a specific passage, or gave a specific explanation of why the court’s argument about futility of the injunction is somehow a departure from how courts normally deal with such things.

    2. Trump law, like many of the Left’s dangerous precedents, will not actually bind future courts. It’s a one-time justification that will be read out of the law.

      Any time the Left needs a special exception for their political advantage they discover it in the constitution. But they never actually apply that constitutional analysis to future cases because it would be disastrous.

      See, e.g., Roe, Lawrence, Obergefell, PruneYard, McCullen, National Fed. v. Sebelius, etc.

      1. As Prof. Volokh requested, do you have more than knee-jerk unhappiness with the outcome to justify your assumption of bad faith here?

        The government wanted an extraordinarily broad prior restraint. As a TRO. Not hard to see that not flying without resorting to judicial animus.

  6. It’s important to me that the judge, who *did* have the chance to review the materials in question, has found that Bolton did include classified materials in the book and did endanger America’s security.
    But I have to admit that, for a total dickwad like Trump, who has used the legal system for decades to screw over his innocent victims, I am overjoyed that he is being hoisted by his own petard. That “Dickwad of a Lesser God” Bolton has uses the legal process to screw over Trump, and has done it, in part, by ignoring norms and just acting however he wanted in the moment.
    My hope is that many Americans read a little more about the awful things Trump has done while in office, and that, also, eventually, Bolton ends up earning not a penny from writing this book. In my perfect world, he’ll also end up facing criminal charges…a nice payback for his dastardly and cowardly refusal to testify at the impeachment hearings in the House and for the real blood on his hands in the Middle East. If Trump does not win re-election in Nov, and is also criminally charged after that; maybe the two of them can have adjoining cells? I’d be okay with them having a rapprochement at that time…no problem with that sort of happy ending. (In prison, may they have such happy endings on a nightly basis.)
    My actual fantasy is that Bolton and Trump will be walking hand-in-hand, and a giant piano falls on both of them. But I suppose that the above is a tiny bit more realistic. (I *did* say ‘tiny.’)

    1. Maybe Obama can be in the same cell block for ordering an illegal domestic spy operation against an opposition candidate during an election with no predicate. That’s at least as egregious as anything Bolton or Trump has done.

      1. SOME of us still shudder at the precedent of ANY past POTUS going to prison. We don’t want that!

      2. “no predicate”

        Wow. Hiring Manafort alone was sufficient predicate.

      3. He should be in prison for ordering the assassination of an innocent American citizen in a foreign country.

      4. How on earth is that relevant to a discussion about the decision not to enforce a TRO against Bolton’s book?

    2. It’s important to me that the judge, who *did* have the chance to review the materials in question, has found that Bolton did include classified materials in the book and did endanger America’s security.

      More accurately the government submitted a list of “classified materials” and the judge affirmed that those materials were in the manuscript.

      I’m not sure that the court really checked if those materials were legitimately classified.

      This following passages are very significant to me:

      In December 2019, Bolton submitted a draft manuscript to the NSC for prepublication review.
      […]
      These edits were iterative and extensive, and on April 27, 2020, Knight communicated to Bolton that she no longer considered the manuscript to contain classified material. Bolton claims that he and Knight discussed the possibility that the final written authorization might be ready as early as that afternoon.
      […]
      On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to Bolton that claimed the manuscript still contained classified information. By that point, Bolton had already delivered a final manuscript to his publisher

      True, Bolton delivered the manuscript without approval, but it went from ‘the authorization is in the mail’ to a delay of over a month and before they “discovered” new classified material. If anyone thinks that Bolton could have published before November by going through the official process then there’s a lovely bridge that I’ve put up for sale.

      1. If anyone thinks that Bolton could have published before November by going through the official process then there’s a lovely bridge that I’ve put up for sale.

        Bolton could have sued the government and sought relief in court. Is publishing before November one of Bolton’s rights?

      2. More accurately the government submitted a list of “classified materials” and the judge affirmed that those materials were in the manuscript.
        I’m not sure that the court really checked if those materials were legitimately classified.

        Here’s what the court said:

        Upon reviewing the classified materials, as well as the declarations filed on the public docket, ECF No. 3-1–5, the Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations.

        So you think that the government misled the judge by presenting unclassified materials and fraudulently representing them as classified?

        1. So you think that the government misled the judge by presenting unclassified materials and fraudulently representing them as classified?

          I think it is certainly something the Administration is fully capable of doing.

          You seem to imagine they have some integrity.

          1. Whoever does that can say good-by to his credibility with any judge thereafter. That’s a pretty heavy price to pay.

          2. Anything the government says is classified IS classified.
            There is a provision for petitioning for stuff to be declassified — some of the JFK assassination stuff has been this way.

            Bolton could have gone the FIOA route to get legitimate *public* copies of documents he knew existed. He didn’t.

        2. AFAIK the procedure for the government to classify information consists of someone in authority saying “X is classified”. And that works retro-actively. Information that is public right now can be declared classified tomorrow.

          I think it’s quite plausible that the government retro-actively classified embarrassing information in order to prevent Bolton from publishing it. It’s likely he could have got it unclassified through court proceedings, eventually. But that would probably have delayed publication until after November, which was the whole point.

      3. From the Pentagon papers case, for there to be sanctions, Bolton had to both reveal classified material AND likely endanger national security in the process. It is not just the simple release of classified material, which there are still limitations on but significantly less.

        The judge is saying that Bolton did both. So there is no need to speculate as to whether or not the information is damaging to security, it is. Ordinarily this meets the standard, but, as the judge notes, the manuscript is already public. It’s already been released to various newsrooms and excerpts are already online. There is nothing the government can do to prevent its release, so the judge won’t issue an injunction because it will do very little. However, if only Bolton had a copy, then the judge makes clear that he would issue an injunction.

      4. “I’m not sure that the court really checked if those materials were legitimately classified.”

        Are you under the impression the judge was actually entitled to over-ride the government’s classification decisions?

        1. And didn’t the government submit the list under pains and penalties of purjury? Are YOU going to go lie to a Federal judge on something like this????

        2. “Are you under the impression the judge was actually entitled to over-ride the government’s classification decisions?”

          If the court finds the motive for classification was to limit Bolton’s First Amendment freedom, not to actually protect information essential to national security? Sure.

          This is all beside the point. The Administration was well-aware of the courts abhorrence of prior restraint. The Administration sought this injunction knowing it had no chance of success.

          So why bother? Trump is very fond of lawsuits having no chance of success, yet pursued with the goal of saddling the defendant with substantial legal costs while simultaneously deterring future critics from speaking out. That seems to be the goal here.

  7. Bolton is a narcissist who never saw a country he didn’t want to bomb. He went into the Trump Administration thinking he would run national security policy by dominating Trump. Now it may be that Trump shows appalling ignorance on a lot of subjects, like whether Britain is a nuclear power, but really Britain is irrelevant as a nuclear power, and Trump’s instincts are clearly much better than John Bolton’s. Whatever Trump’s intellectual shortcomings he is neither supine nor a Warhawk, which is a good mix for a president. And despite some rocky relationships with some of our allies, the worst of Trump’s national security blunders can’t compare to Obama’s Libya debacle which he was led into by our European allies and Hillary.

    I hope not only Bolton, but several executives from his publishing house see jail time over these illegal national security disclosures, but I doubt it will hurt Trump much electorally.

  8. It takes John Bolton to get me to agree with Mr. Trump on something.

    That said I am perfectly content to have Bolton take Trump down. Not that he actually will but if he did I would be OK with it. Then Bolton can then go slither under whatever rock he came from.

  9. Perfect. Both sides lose. Pass the popcorn.

  10. It is extremely concerned that a national security advisor can just use his access to classified material to essentially try to blackmail a president.

    Had Donald Trump implemented John Bolton’s requests to bomb everything, I highly doubt Bolton would have responded with this.

    Especially because this is the only time really Trump stood up on principles. In everything else Trump has constantly been manipulated by his staff but here, Bolton’s policy ideals were so bad and dangerous Trump said no. And in response Bolton runs this. It’s not out of any adherence or loyalty to the American public. It’s out of childlike anger that Trump had the audacity to tell him no.

    That being said, given that Trump exhibits the exact same anger all the time … this is really fun. I might even order a copy.

    1. Bolton comes off looking spiteful and insincere. An approach obviously driven by rage normally has less credibility than one that comes across as disinterested and thoughtful. Also, if he really thought that Trump really was a danger to the country why did he delay his disclosure of this in order to maximize his income instead of submitting to questions from congressional committees when they asked him, much less take steps earlier when he still worked there? Bolton was OK with Trump as president as long as Bolton kept his job but at the same time Bolton thought Trump was unsuitable for the presidency? How does that work?

  11. The classification issue actually came up with Tom Clancey’s _Hunt for Red October_ — everything in there was public source and he could prove it. See: https://www.youtube.com/watch?v=VS54M5Mqa9M

    1. That was Clancy’s speech to the NSA, but it is also a good example of how you should do it.

    2. The situation involving Tom Clancy (which, since you’re endorsing it, I will assume is untrue) has nothing to do with the issues raised by this situation.

  12. It’s funny how many people have already essentially cut and pasted Trump’s ‘Bolton wants to bomb everyone’ line. Talking points issued and followed!

  13. Trump and Bolton deserve each other. If hell exists, it will be those two sharing a small cell for all eternity.

  14. I would not be shocked to learn that the book contains classified information, but I would be surprised if it actually endangers the security of the US. One reason is that, although I disagree with him often on policy, Bolton is probably as expert on foreign policy, military and intelligence matters as anyone involved in the vetting process and is certainly a patriot, so I would not expect him to reveal information that would endanger the US. Another is that the book as published reflects a lengthy vetting process and that the claim that information that should be redacted remains came only at the last minute, from the White House, after the professionals had had their say. There’s no way to be sure, but this smacks of an attempt by the White House to protect itself from embarrassment.

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