Free Speech

"Assessing the Government's Lawsuit Against John Bolton"


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….

NEXT: Thoughts on the Supreme Court's Sound, but Very Narrow Ruling on DACA [Updated]

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  1. Isn’t this what Bradley/Chelsea Manning went to prison for?

    1. No, you don’t go to prison for breaching an NDA.

      1. Much as it gals me to agree with Dr. Ed, if Bolton did violate this particular NDA (a question on which I express no opinion), he very likely violated 18 U.S.C. §  793(e), which was indeed incorporated into one of the specifications against Manning.

        1. “… relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…” §  793(e)

          Man, that seems like a real reach to me. In re Manning? Sure, I could see it. But for Bolton? I have not yet read of his book. But it’s hard for me to see Bolton writing about conversations he had/overheard, that (a) relate to nat’l defense, (b) are still timely enough to injure the USA or benefit another country, AND (c) managed to get past the normal review process.

          It’s possible, of course. But I assume a court can’t order prior restraint without Trump being able to point to specific examples. (I assume that any judge hearing this type of case would have to have the highest levels of security clearance, right? Cuz it would be impossible for a judge to rule without the specifics. And the govt will argue that only people with security clearances can see or hear this evidence.)

          Man, Trump goes to a lot of effort to keep Americans from knowing the truth about a lot of things. I get him lying about releasing his taxes. I get him lying about how eager he was to testify regarding his crimes re Ukraine. And I guess I get why he’s trying to keep us in the dark about this. But hiding the truth from us seems to occupy about 80% of those rare parts of the day when he’s not sleeping, eating, cheating on his wife, or rage-tweeting.

          1. “But hiding the truth from us seems to occupy about 80% of those rare parts of the day when he’s not sleeping, eating, cheating on his wife, or rage-tweeting.”

            You forgot golfing and watching TV. I mean, he spends a lot of time golfing and watching TV.

            Of course, he still rage-tweets while watching TV and golfing, so it’s not mutually exclusive.

        2. Then he would go to prison for violating a statute, not an NDA.

      2. “you don’t go to prison for breaching an NDA.”

        Unless it’s backed by a court order. Then you got criminal contempt.

  2. Bolton has a simple (and likely true) defense: its a work of fiction.

    1. Yup. If I have to decide on picking between two people, in picking which one is lying; I’m definitely gonna side with Donald Trump, A paragon of virtue. A man who has lived a life of integrity and honor, and a person that has a decades-long history of tolerance, honesty, and an overall aura of goodness that surrounds him.

      Yup. I can foresee no problem with anyone making this argument.

  3. The bell is rung, the cat is out of the bag, the ship has sailed.

    Choose your metaphor. … the point is, I doubt Bolton cares much about money at this age he cares about notoriety, and whether the allegations are true or false, Bolton played Trump like a fiddle. The lawsuit only adds gasoline to the Streisand Effect.

    In a world where the news is mostly COVID, riots, and looting, Bolton would have been page 15 had the Trump admin not saved him with an ill-conceived lawsuit.

    1. This is why Trump is trying to grab the money. First he pumped up the value of the book by trying to suppress it, then he grabs the proceeds. He absolutely LOVES the idea of taking the money that somebody else did all the work to earn.

  4. What bothers me is just the casual way these ‘swamp creatures’ (Obama got burned by people too) just disregard the legal contracts they signed, with impunity. Don’t like the government upholding the contract? Ok, just leak it to the press. What are these people thinking?

    It used to be that when you signed a contract, that agreement was sacrosanct. Somewhere along the line, this cultural more changed. That is not right.

    1. “It used to be that when you signed a contract, that agreement was sacrosanct.”

      When and what is your factual basis for this?

      1. Heh. I’d put it a more cynical way, as advice I’d give anyone running for office (and again, if they won their election):

        “People have gone to work in the White House and have written books about it since forever. So, for ANY president; just suck it up. Stop whining like a spoiled brat. Stop complaining like a privileged snot-nosed baby. You’re the most powerful and important person in the world. And now, people are gonna say a few mean things about you. Mostly true things. Some things that are not true. Some that are only partly true. SUCK IT UP, SNOWFLAKE. Just accept that, among the many many many many many many many many benefits to being president, there is the downside that people who work for you will later say those mean things. Did I already mention: SUCK IT UP, SNOWFLAKE?”

        People wrote lots of bad things about Obama. And W. Bush. And Clinton. Etc etc etc etc. Only Trump immediately reverted to his comfort zone of Aggrieved Entitled Sensitive Asshole.

      2. Everybody knows contract law didn’t start to develop until the late 1990s.

    2. You mean like Trump’s marriages? Or his campaign security bills he refuses to pay? Or his contracts with workers he’s refused to pay? Or perhaps his contract with the American people to put the country first, and not his own vanity and narcissism?

      Those contracts?

  5. The funny thing is watching just how far the Trump corruption has rotted the GOP. I mean, look at these comments!

    No person should defend John Bolton. He has an expansive and dangerous view of American power that combines aggression and isolation; very few people have so potent a mix of disdain for allies and bellicosity toward rivals.

    That said, no one has ever questioned his integrity. He might be a warmongering POS, but he’s always been open about that.

    For people to rush forward and say, “Yeah, that Bolton guy is a liar. Not like Trump, the paragon of truthfulness ….”

    You can’t get any stupider than that. Well, I say that now, but I will be wrong.

    1. “You can’t get any stupider than that. Well, I say that now, but I will be wrong.”

      I’m pretty sure that Mr. Trump has already composed the tweet that will disprove it.

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