The Volokh Conspiracy
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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."
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.
