In a sigh of relief for proponents of the First Amendment, a federal court judge in Washington, D.C. denied the Trump Administration’s request for a restraining order to prevent former National Security Advisor John Bolton and his publisher, Simon and Schuster, from proceeding with the sale of Bolton’s book.
“While Bolton’s unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy,” wrote Judge Royce Lamberth in an opinion issued June 20, 2020.
The court said because book had already been distributed to members of the media – and hundreds of thousands has been shipped to booksellers around the world – the damage had already been done and an injunction would be pointless.
“At the hearing on the injunction, the Court remarked that given the widespread dissemination of the books, the ‘horse is already out of the barn,’” Lamberth wrote. “By the looks of it, the horse is not just out the barn – it is out of the country.”
Lamberth then discussed the futility – in the Internet age – of retrieving and destroying all copies of the book that were already in the public’s hands.
“A single dedicated individual with a book in hand could publish its contents far and wide from his local coffee shop,” Lamberth wrote. “With hundreds of thousands of copies around the globe – many in newsrooms – the damage is done. There is no restoring the status quo.”
And yet, Lamberth’s opinion was hardly a ringing endorsement of Bolton’s actions. Indeed, quite to the contrary.
“[D]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations,” Lamberth wrote.
If Bolton was frustrated with the prepublication review process, Judge Lamberth wrote, Bolton “could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion.”
The judge also noted that the government could seek to claim any profits Bolton makes from the book, and noted that Bolton faces potential criminal liability for disclosing national security secrets.
Bolton has claimed that his book did not contain classified information, and that he was told as such after a four-month long prepublication process done by a senior official with the National Security Council, Ellen Knight, who has more than a decade of experience conducting such reviews.
But neither Knight nor any other NSC official ever provided Bolton with formal written authorization, as his nondisclosure agreement required.
Indeed, after Knight allegedly told Bolton that she no longer considered the manuscript to contain classified material, she later clarified that the process was ongoing.
Apparently the prepublication review process was passed on to John Eisenberg, a deputy White House counsel. It is not clear why Eisenberg became involved in the process, particularly because Eisenberg did not have prepublication review experience, according to statements made at a court hearing on June 20, 2020. (The court hearing held was via a Skype-like video for the counsel involved, and also available to the public via a telephone tie-in.)
But there has been much speculation that Eisenberg was brought in to further delay publication of Bolton’s book, The Room Where It Happened, because it provides an unflattering portrait of President Trump and other White House officials in an election year.
In a curious moment during the June 19 hearing, Judge Lamberth noted that the Justice Department had filed various affidavits supporting its request for a prior restraint against publication by Bolton and his publisher, but had not submitted an affidavit by the primary prepublication reviewer, Knight.
One can wonder whether Knight would have said her review was complete and that, in fact, she did not believe Bolton’s manuscript contained classified information.
In the book, Bolton also is very critical of Democrats in the U.S. House of Representatives as they pursued impeachment proceedings against the president.
Judge Lamberth’s opinion will no doubt provide a new roadmap for government agencies – especially those involved with national intelligence – on how to prevent the publication of purported classified information in the future.
The agencies will no doubt revise nondisclosure agreements to ensure formal, written, pre-approval for any purported publication from a current or former public official.
While such an endeavor is undoubtedly a legitimate government interest, it could also empower this or future administrations to put constraints against honest attempts by current or former government officials to disclose important information about purported misdeeds, or just the airing of dirty laundry, from the public.
Further judgment awaits.
Robert D. Lystad is the Executive Director of the non-profit Campaign for Free Speech, based in Washington, D.C.