Just when former National Security Advisor John Bolton’s quest to publish his tell-all book about his time in the White House appeared to be reaching fruition, the White House fired back.
The U.S. Justice Department filed suit on June 16 accusing Bolton of breach of contract by violating his nondisclosure agreement with the Administration.
The complaint says the legal action was necessary, according to The Washington Post, in order “to prevent [Bolton] from compromising national security by publishing a book containing classified information – in clear breach of agreements signed as a condition of his employment and as a condition of gaining access to highly classified information and in clear breach of the trust placed within him by the United States Government.”
Bolton and his esteemed Washington attorney Charles Cooper, have said this is utter poppycock.
And in a scathing rebuke against the Trump administration, Attorney General William Barr, and, indeed, Bolton himself, two left-leaning legal commentators for Slate took all those involved to task. “This suit, like virtually all of Trump’s countless previous failed lawsuits, is really about vindictiveness,” wrote Dahlia Lithwick and Scott Pilutik.
They added, “Let’s be honest: It’s a bitter pill to swallow to now be rooting for John Bolton, the man who opted for cashing in over testifying during the impeachment, when his revelations about Trump’s misdealings with foreign governments may have made a real difference.”
Bolton, who held his post in the Trump Administration for a year and a half, has been pursuing publication of The Room Where It Happened: A White House Memoir since soon after he resigned under pressure last September.
But the White House kept insisting the manuscript contained classified information that, by law, Bolton cannot reveal.
Bolton worked for months with the National Security Council’s senior director for prepublication review of materials written by NSC personnel to address concerns raised by the NSC about disclosing classified information.
Bolton and Cooper adamantly rejected the contention that the manuscript contained classified information and claimed the White House was trampling on Bolton’s First Amendment right of free speech.
In a Wall Street Journal column, Cooper, a one-time Justice Department official in the Reagan White House and now in private practice, called the process “perhaps the most extensive and intensive prepublication review in NSC history.”
He said Bolton and the NSC official, Ellen Knight, “spent almost four months going through the nearly 500-page manuscript four times, often line by line.” He said Bolton was extremely cooperative in addressing Knight’s concerns. Bolton revised his manuscript multiple times, often adopting Knight’s proposed language changes verbatim.
But Cooper implied the White House and NSC were deliberately stonewalling Bolton, almost certainly because Bolton is going to air some dirty laundry about the President and other White House officials.
“This is the book Donald Trump doesn’t want you to read,” Bolton’s publisher, Simon and Schuster, proclaimed in a press release.
“Drawn from his personal participation in key events, and filled with perspective and humor,” the release said, “Bolton covers an array of topics – chaos in the White House, sure, but also assessments of major players, the President’s inconsistent, scattershot decision-making process, and his dealings with allies and enemies alike.”
Neither the White House nor the NSC has provided Bolton with a clearance letter allowing publication of the book.
“This is a transparent attempt to use national security as a pretext to censor Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import,” wrote Cooper.
Simon & and Schuster announced that it had already shipped the book to warehouses and that the book would be available to the public on June 23, 2020.
But President Trump this week said Bolton’s book is “highly inappropriate” and vowed to take legal action, which the Justice Department has now done.
The NSC’s prepublication review process has been criticized by dozens of former government officials who claim reviewers take far too much time vetting books, and further that they search not only for classified information, but also embarrassing tidbits that go far beyond the law’s intent.
“There are a shocking number of examples of agency censors taking months or even years to complete prepublication review,” writes the nonprofit organization Just Security in a post explaining how the law works.
“If Bolton nevertheless pressed ahead with the publication of his book without final approval [by the White House and the NSC], the government could attempt to punish him in a number of ways: by filing a lawsuit to seize the profits from his book, by revoking his security clearance, or by criminally prosecuting him if his book contained classified information,” Just Security writes.
Some observers suggested previously the White House would file a lawsuit to outright prevent publication of the book – a “prior restraint” – on national security grounds. Perhaps acknowledging that such an effort likely would be folly because the burden on the government to demonstrate the need for a prior restraint is so high, the Justice Department did not sue the publisher to prevent publication.
This rule of law was set forth in the U.S. Supreme Court’s landmark decision in New York Times Co. v. United States nearly 50 years ago.
In what is widely known as the “Pentagon Papers” case, the Nixon Administration initially successfully sued to prohibit The New York Times from publishing classified information concerning the war in Vietnam.
The case ultimately made its way to the Supreme Court, where, by a vote of 6-3, it said the government’s attempt at blocking publication amounted to an unconstitutional prior restraint because, in general, it gave the Executive Branch too much censorship power.
Tell-all books by both insiders and outsiders about alleged misdeeds and other nefarious behavior of presidential officials are a hallmark of virtually every administration, and, it seems, the Trump administration in particular.
John Bolton’s will only be the latest.
Robert D. Lystad is the Executive Director of the non-profit Campaign for Free Speech, based in Washington, D.C.