from the not-how-it-works,-chief dept
As you’ve probably heard by now, earlier this week, the Justice Department went to court to sue former National Security Advisor John Bolton regarding his book (which is highly critical of the President), entitled The Room Where It Happened. Lots of people have lots of opinions regarding Bolton, Trump, and the book, but I’m going to focus specifically on the legal dispute here, which in some ways is reminiscent of the lawsuit filed over Ed Snowden’s book, which meant that the government can take all the proceeds of that book.
The key issue in both of these lawsuits is that when you work in the US intelligence community, you are required to sign a lifetime contract that forbids publishing any manuscript or giving any speech related to your intelligence work, without the content first going through “pre-publication review.” For years (going well beyond this administration) there have been claims that pre-publication review is used not just to protect classified information (its official purpose), but also to hide unclassified but potentially embarrassing information from public view. Indeed, there is a separate lawsuit, filed by Timothy Edgar and some other former intelligence officials challenging the pre-publication review process as a form of prior restraint and of creating chilling effects against speech, and thus against the 1st Amendment. In April, the judge dismissed that case.
The court rejected the prior restraint argument by noting that the plaintiffs signed a contract, and you can absolutely waive your 1st Amendment rights by contract if you so choose. The court is a bit more open to the chilling effects claim, but eventually rules against them, citing other cases that more or less said these kinds of government contracts are fine and not in violation of the 1st Amendment. It also suggests that if there’s a remedy to be sought here, the proper venue is through legislative change, rather than through the judicial system. In summary, the court says:
Plaintiffs have thus fallen short of plausibly demonstrating that the challenged policies
raise constitutional concerns under either of the two vagueness frameworks. The Court notes that
they have also failed to link the redactions and excisions from their own works that they allege
were arbitrary and discriminatorily motivated to a challenge to the PPR regimes as a whole…. Nor have they responded to Defendants’ observation that
no Plaintiff has pursued judicial review of a PPR decision, as they are entitled to do…. While the Court appreciates the delay in
publication that judicial review could entail, Plaintiffs have not demonstrated that such a delay
on its own renders the PPR regimes constitutionally infirm, nor that review in a specific case
would not be a more effective means of reviewing the alleged vagueness of a given PPR policy
than a facial challenge. In any event, because none of the avenues that Plaintiffs have pursued for
their vagueness claim are viable, the claim will be dismissed.
The plaintiffs in that case have since appealed.
With Bolton, there have been widespread reports that the administration deliberately slow rolled the pre-publication review process in order to try to keep the book away from the public prior to the November election. There have been reports of ongoing back and forth between the publishers and the administration, with some clear frustration expressed by the publishers/Bolton that pre-publication review is being used to stifle the book for the time being, rather than to actually scrub it for any classified material.
Given all that, it was announced that the book was going to come out anyway, leading the DOJ to sue. The lawsuit is just against Bolton, and not against the publisher, Simon & Schuster. The is, perhaps, a recognition that Simon & Schuster never signed a contract with the government, and preventing the publisher from releasing the book would have a much stronger prior restraint claim. Instead, the lawsuit just targets Bolton, and while (as with the Snowden book) it seeks to take the proceeds of the book, it also wants the court to order Bolton to tell Simon & Schuster to delay the book release, because of his own breach of contract.
That lead many people to claim that the government was not trying to stop the book from being published… However, that view did not last long. The day after the original complaint was filed, the government filed an application for a temporary restraining order and preliminary injunction. A hearing on this matter is happening today (about the time this post is being published).
From what a variety of legal experts have said it seems likely that (1) the book will still get published, but also that (2) the proceeds of the book will not go to Bolton, but will go into the US Treasury. Maybe. That said, there are some oddities here, and reading through the exhibits includes with the TRO application paints quite a story, suggesting that the administration is deliberately lying about whether or not the book actually contains any remaining classified material.
It does appear that Bolton and the government went through a fairly extensive pre-publication review over the past few months with a reviewer, Ellen Knight. Bolton and Knight met multiple times over the course of the past few months, with Knight detailing everywhere she found classified information, and Bolton responding and revising the work. Bolton ended up cutting out large chunks of the book in response to Knight’s concerns about classified information. On April 27th, after yet another round of revisions, Knight told Bolton that she had no more concerns about classified info being in the book. At that point Bolton was told to expect to get the clearance. But that didn’t come. Instead, the government at first seemed to ghost him. According to Bolton’s lawyers:
When Ambassador Bolton asked when he could expect to receive the pro-forma closing letter confirming that the prepublication review process had been concluded, 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 nonetheless thought the letter might be ready that afternoon but would “know more by the end of the day.” They even discussed whether the letter should be transmitted by electronic transmission or by him physically picking up the hard copy. It has now been more than six weeks since the final revisions to the book, and Ambassador Bolton has not received the letter to which Mrs. Knight thought he was entitled. His inquiries of Ms. Knight as to when he would receive the letter documenting her agreement that the book contains no classified information have been answered with stiff and formal replies that she had nothing new to report. He had not heard from her, or anyone else at the NSC, since May 7….
What apparently happened after May 7th was that the White House magically found someone new, Michael Ellis (a political appointee who has not historically done pre-publication review), who claimed (magically) that the book was still full of classified info. Full paragraphs of it. He claims. Full paragraphs that (according to Ellis) “if made public, reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the national security of the United States.” This despite Knight saying the exact opposite.
Of course, as all of this is happening, basically every major publication ran excerpts or discussions of the book. There was the article in the Washington Post talking about how Trump asked China’s President to help him win the election (and supported Xi’s use of concentration camps) based on reading a copy of the book. Tthe Wall Street Journal ran an excerpt talking about those same interactions with China, and the NY Times ran a story claiming that the impeachment inquiry should have looked at more than just Ukraine. Though, the NY Times also published a piece that was highly critical of the book, noting that it “swings between tedious and slightly unhinged” (which some might argue is an apt description of Bolton himself).
The President himself has gotten into the game claiming that the book “is a compilation of lies and made up stories” and that it is “pure fiction.” Of course, that argument undermines the crux of the lawsuit and the push for the restraining order. Indeed, the filing for the TRO says there will be “irreparable harm” if the book is published — which sort of conflicts with the “full of lies” claim:
Defendant intends to publish on June 23 contains classified information, including information classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. This means it
contains instances of information that, if disclosed, reasonably could be expected to cause serious
damage, or exceptionally grave damage, to the national security of the United States…. And Mr. Ellis specifically concluded, moreover, that “certain passages in the draft
manuscript . . ., if disclosed, will damage the national security of the United States.”
Indeed, the conflict between the claims of falsity and classification, oddly, enable some level of confirmation to some of the events Bolton describes. Specifically, in the excerpt published in the WSJ, Bolton says that he would print Trump’s exact words to China’s Xi regarding helping Trump win re-election in November, “but the government’s prepublication review process has decided otherwise.” As Bradley Moss, who specializes in national security law, the fact that the administration wants that conversation classified is itself confirmation that the claimed conversation happened.
So there’s a bit of a Schrodinger’s cat issue here regarding the statements — and whether they’re lies, in which case, they’re not classified, or they’re truth, in which case they might be — but can they possibly be both at the same time?
Another key point, as raised by Marcy Wheeler, details a different sort of contrast: the one comparing Bolton to another Trump National Security Advisor: Michael Flynn. Indeed, Wheeler makes the compelling case that it’s pretty clear that what Flynn did seems to be a much bigger crime than what Bolton is accused of doing here:
This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.
The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.
But, even odder still: to support the claims that the Flynn prosecution was in error, the White House has been declassifying various transcripts of Flynn’s calls to Russian ambassador Sergey Kislyak, and Wheeler contrasts such declassification with the demands to keep information classified regarding Bolton (by the very same people):
But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.
But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.
The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.
Of course, there is a clear consistency in all of this: if it makes the President and his supporters look good, it’s okay. If it criticizes the President, it’s not okay. That, as always, seems to be the fundamental driving force behind this administration.
The one interesting wildcard in this is the judge the case was assigned to, Royce Lamberth (who you may remember for the benchslap he gave a copyright troll). It seems almost every litigator I know has an opinion about Lamberth, and they agree that if there’s one thing that Lamberth hates more than anything else: it’s the DOJ trying to over-classify shit. I have now heard from five separate lawyers making claims along those lines, and he’s even complained publicly at a conference about this issue, in which he called out intelligence scandals in which judges rubber stamped claims of classification to block FOIA requests.
In other words, the DOJ may have pulled their worst nightmare as a judge in this particular case — especially given the odd nature of the pre-publication review here (approving it, only to have someone else step in and say “nope.”) You never know what will happen, of course, but hopefully we get to see Judge Lambreth in full government skeptic mode.