The Justice Department on Wednesday night sought an emergency order from a judge blocking the publication of former national security adviser John Bolton’s forthcoming White House memoir, escalating a legal battle against the former Donald Trump aide even after many of his book’s most explosive details had spilled out into public view.
The move came after the administration filed a civil suit against Bolton on Tuesday, targeting the proceeds of the book and asking a court to order him to delay its scheduled June 23 release. Less than 24 hours later, the Wall Street Journal published an excerpt of the memoir, and lengthy accounts were published by other news organizations.
Wednesday’s move sought to formally enjoin Bolton from allowing his book to be published, a legal strategy experts said was unlikely to succeed, particularly given that the book has already been printed and shipped to warehouses and copies distributed to the media for review.
Still, the legal show of force could satisfy President Trump, who urged aides Wednesday to seek to block the publication of the book, despite warnings that his legal case would not be strong, according to people familiar with his remarks, who spoke on the condition of anonymity to describe private conversations.
Even if the legal maneuvering has failed to stop the book’s contents from reaching the public, experts said Tuesday’s lawsuit could still succeed in its central purpose – forcing Bolton to turn over proceeds from the book to the government.
Bolton also could face more serious consequences. The Justice Department is now investigating to see whether any laws regarding the handling of classified information were broken in the course of Bolton writing the book, according to people familiar with the matter.
A Justice Department spokeswoman declined to comment. Bolton has denied the book contains government secrets.
On Monday, Trump, speaking at an event with Attorney General William Barr, told reporters that Bolton could face “criminal problems” if his book is released.
“I will consider every conversation with me as president highly classified,” the president said.
Bolton’s memoir, “The Room Where It Happened: A White House Memoir,” an account of his 19 months as President Trump’s top national security official, offers a withering portrait of Trump as an erratic and ignorant leader who constantly places his own personal whims above the national interest.
In a 37-page filing Wednesday, the Justice Department wrote, “Disclosure of the manuscript will damage the national security of the United States, adding, “To be clear: Defendant’s manuscript still contains classified information, as confirmed by some of the Government’s most senior national-security and intelligence officials.”
Prosecutors asked U.S. District Judge Royce Lamberth of the District for a hearing Friday on the motion for a temporary restraining order and preliminary injunction against Bolton, “seeking to enjoin publication of a book containing classified information.”
The government has named only Bolton as a defendant in the lawsuit, but argued in Wednesday’s filing that if a court enjoins Bolton then its order should also bind his publisher, Simon & Schuster.
Trump, who has called Bolton a “traitor” and was incensed that he walked out of the White House with copious notes, has told allies he’d like to see Bolton be charged, according to people familiar with his remarks, who spoke on the condition of anonymity to describe private conversations. The president continued to urge aides on Wednesday to seek to block the publication of the book, according to the people.
Barring further court action by the government, by law, Bolton is not required to respond to the Justice Department civil suit for 20 days – weeks after the book’s publication date. The case is not likely to be decided until the fall, at the earliest.
But the suit also seeks to garnish all of the money Bolton will make from the book’s publication, an avenue the government has sought repeatedly in cases when government employees with top security clearances publish books without approval.
In the suit, the government argued the book contains classified material and that Bolton has breached a contract with the government by not completing a required national security review. The suit asserts that Bolton was told the review process was ongoing and that the nondisclosure agreement he signed when he accepted the post prohibited him from publishing until it was complete.
Bolton did not get an official sign-off from the National Security Council on his manuscript, according to letters filed in federal court as part of the Justice Department’s civil action.
The suit also reveals other details of how the review process unfolded, including that top political appointees had been holding up approval for the book.
Bolton’s lawyer, Charles Cooper, says his client participated in an arduous, good faith review for months and was informed in April by a career White House official assigned to conduct the review that the final version of the book did not contain classified material.
In a June 10 letter to the White House, Cooper said that after Bolton was told by the career NSC official that she had no further edits and he had waited for weeks for a final confirmation letter, Bolton and his publisher decided to move forward with publication.
Cooper called the claim that Bolton had defied the prepublication review a “pretext to censor or delay Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import.”
In response, White House lawyer John Eisenberg wrote that he was “shocked and dismayed” to learn that the book had been published and was already in warehouses.
“Any suggestion your client believes he had completed the prepublication process is preposterous,” he wrote to Cooper.
Many former government officials who have sought to publish books after leaving public office have found the pre-publication review process arbitrary, slow and unfair, legal experts said. A group of officials last year filed a lawsuit arguing that the system is inherently broken and infringes on government employees’ freedom of speech.
Their suit alleged that people whose manuscripts criticize government practices are often subject to more challenging and lengthy reviews than people who do not, even though the system is intended only to prevent the publication of classified secrets and not bar the public from learning embarrassing information about the government.
That lawsuit, however, was dismissed in April by a federal district court judge in Maryland, who found the system does not infringe on the First Amendment. The judge cited a 1980 Supreme Court ruling that allowed the CIA to seize proceeds from a former officer who had failed to submit his manuscript for review. The officials are appealing.
Mark Zaid, a lawyer who has represented more than two dozen current and former government employees who have sought to publish books, said the six months that Bolton’s manuscript underwent government review is not unusually lengthy-in fact, most people are subject to review for far longer, he said.
Nor, he said, is it unusual for multiple layers of officials to review a single manuscript. He said Bolton’s manuscript may have come under particular or even unfair scrutiny – but noted that under the law, government officials have the sole discretion to determine what material is classified. He said the course for authors who believe they have been mistreated in the process is to sue the government, not publish their books without permission.
“Bolton is required to wait until he receives formal approval from the U.S. government,” Zaid said. “Is he without option? No. He can sue. And that’s what he should have done.”
While the government’s suit will not stop the book’s publication, Zaid said, it could result in Bolton being forced to give up any proceeds.
“Bolton should be prepared to write a very large check,” he said.
Kel McClanahan, an attorney who practices national security law, said the civil case is likely to turn solely on whether he breached the contract he signed when he became national security adviser and agreed to the review process. And as Trump boasted publicly, the president has tremendous power under the law to decide what is classified, he added.But on May 2, at the request of national security adviser Robert O’Brien, “an additional review” was launched by Michael Ellis, the senior director for intelligence on the National Security Council, according to the suit.
The Justice Department could now seek to prosecute Bolton for publishing the book without authorization if prosecutors can prove that it in fact includes classified information.
Under a 2003 opinion from the District of Columbia Circuit Court of Appeals, authors are not allowed to distribute book manuscripts prior to review even to their own lawyers and publishers, something Bolton has already acknowledged doing, experts said.
But Zaid said he was aware of no other case in which the government had criminally prosecuted an author for including classified material in a book. If Bolton was prosecuted, the government would be required to provide a detailed description of the secrets he included in his book.
In his June 10 letter to the White House, Cooper said that Bolton and Ellen Knight, the National Security Council’s senior director for records, access and information security management, spent almost four months going through the nearly 500-page manuscript multiple times, often line by line, and making numerous changes.
In late March, Cooper said that Knight wrote, “I appreciate your efforts to address the classification concerns in the latest draft version you submitted. Many of the changes are satisfactory. However, additional edits are required to ensure the protection of national security information. To assist in making the additional required changes, I will provide a list of required edits and language substitutions to guide you in this next stage of revising the draft.”
Her list consisted of 17 single-spaced pages of typed comments and suggestions, he wrote. Cooper said Bolton worked through the weekend and responded on March 30, accepting the vast majority of Knight’s suggestions and proposing alternative solutions to others.
After Bolton made more requested changes throughout April, Knight told Bolton on April 27 that she did not have further edits, Cooper said in his letter.
Yet, Cooper said that when Bolton asked when he would receive the letter confirming the book was cleared, Knight 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 thought the letter might be ready that afternoon, but would know more by the end of the day, Cooper recalled.
On June 8, Eisenberg, the White House deputy counsel for national security, told Cooper in a letter that Bolton’s manuscript contained classified information and that publishing it would violate his nondisclosure agreement.
(c) 2020, The Washington Post · Tom Hamburger, Rosalind S. Helderman, Devlin Barrett, Spencer S. Hsu ·