Bolton’s Win Could Cost Him More Than Just Profits

John_R._BoltonOn Saturday, federal district court judge Royce Lamberth denied a motion to enjoin the release of former National Security Adviser John Bolton’s tell-all book in a 10-page order.  The book, titled “The Room Where it Happened,” is already in circulation with reporters literally standing outside of the courthouse reading from it.  As argued in the column before the decision, Lamberth rejected the injunction.  However, he lambasted Bolton for his failure to complete the classification review that he agreed to as part of his taking the position with President Donald Trump.  There are already possibly classified subjects being teased out of the book by the media.  Lamberth decried the fact that Bolton has “gambled with national security” and said that his actions “raise grave national security concerns” but “the damage is done.” Perhaps it is done for the release but the damage to Bolton may only be beginning. As Lamberth noted, he now faces civil and criminal liability, which are discussed in the column. 

Here is the column:

In a hearing to stop former national security adviser John Bolton from releasing his book, an exasperated Judge Royce Lamberth seemed to throw up his hands over demands for an injunction, stating the horse “seems to be out of the barn.” Lamberth is right and wrong. He is right that an injunction makes little sense as the administration did nothing while the book was printed and sent to warehouses and to the media. Lamberth is wrong that there is not a good option because there is. It would be to let Bolton sell the book, let the critics of President Trump purchase it, and let the federal government keep the profits.

The case is tricky because Bolton is in clear violation of his nondisclosure agreement, which includes a provision for approval prior to publication. I have signed such nondisclosure agreements for decades for my national security work and, each time, I still swallow hard in reading the language on review. Moreover, the courts tend to defer to the classification claims of the executive branch. Bolton admits he did not receive approval since he believed, not without reason, that the administration was slowing the process in order to delay the book release before the election.

There is certainly every indication that Bolton did exactly what the White House hoped he would do. The administration did nothing as thousands of copies of “The Room Where It Happened” were printed. So if the book does contain sensitive classified information, it hardly seems credible as intelligence agencies believed the Russians would not dare try to breach the Barnes and Noble warehouse guarded by a single night watchman or, on the other hand, borrow a copy from any journalist in town.

Adding to this mystery, the book actually did pass a classification review but was suddenly subjected to a highly irregular secondary review. That duplicate review was performed by the National Security Council senior director for intelligence, Michael Ellis, who had been on the job only two months and declared portions of the book classified. Further, the Justice Department admitted Ellis did not have “original classification authority” until a day after he finished his review of what Bolton wrote.

None of that supports the act of prior restraint of a publisher, even if the court accepts the classification authority. Such prior restraint raises free speech issues, notably if the administration seeks to block the release of the book alleging that the president is unstable and unfit. It is even more problematic when the book is readily available to the media. Indeed, the day that Lamberth was considering an injunction against the book, there were journalists such as John Roberts with Fox News working next to the White House reading it. No one in the courtroom was unimpeachable, so the solution here is to give them all what they richly deserve.

Bolton will have his book out despite violating his trust with the president, his nondisclosure agreement, and the federal classification laws. For that success, however, he could lose his profits and even his liberty. In waiting for Bolton to run, the Justice Department handed him just enough rope to hang himself. Given the prior notice of classified content, it could bring a criminal prosecution under the Espionage Act, though such prosecutions are rare and difficult. The main goal would be the profits. It has happened before. Navy Seal Matthew Bissonnette used the pen name Mark Owen to write “No Easy Day” about the raid that killed Osama Bin Laden. He had to pay the government almost $7 million to avoid prosecution.

Likewise, in the case Frank Snepp versus the United States, the Supreme Court considered a book by a Central Intelligence Agency employee who signed his nondisclosure agreement but wrote about official activities for Vietnam. The Supreme Court ruled that Snepp would lose his profits and described the case in a way that must concern Bolton about positions of trust in the federal government. An obvious example of one of those few positions of great trust would be national security adviser.

The Justice Department could threaten prosecution while settling for the profits. This leaves Bolton with high acclaim and few assets. Republicans despise him for diving the party, and Democrats hate him for refusing to testify during the impeachment. For Trump, the book will join a towering pile of accounts from former senior aides accusing him of lunacy. He has responded with his standard vicious personal attack on a former top aide or cabinet member, leading a White House reporter to ask, “Why do you keep hiring people that you believe are wackos and liars?”

That is why Lamberth has to refuse the injunction. Everyone will get what they want. Critics get another embarrassing insider account of the White House, Bolton gets his account on record, Trump gets to seize the profits, and Lamberth is the man in “the room where it happened.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

92 thoughts on “Bolton’s Win Could Cost Him More Than Just Profits”

  1. The Judge took the correct path and got it on track as even Bolton admits to the security violations. That’s the long, short and end of it until the civil and other investigations and trials are complete. Justice is served. No thanks to the Socialist and heavily biased media.

  2. JT draws the wrong conclusions.

    1. Barr’s actions make no obvious sense if he’s not trying to cover up something, and given his past bizarre and disruptive actions to benefit the President at the cost of the DOJ, he should be assumed to be up to no good.
    2. Relying on IGs in this administration is a bad joke – Trump fired 4 in the last couple of months for obvious personal benefit. Those remaining can be considered gun shy or heroes, but not normal functioning IG’s.
    3. JT once again misrepresents the Mueller Report in claiming “collusion” was not proven. How many times is he going to repeat this lie. Someone not a law professor could be accused of just simple ignorance, but JT does not have this excuse. He has not commented on the un-redacted pages from the report released only last week which show that Trump was in contact with Stone about Wiki-leaks releasing Russian provided info and that Trump lied to Mueller about this fact. Come on! https://www.businessinsider.com/new-unredacted-mueller-report-most-explosive-revelations-stone-wikileaks-2020-6

    1. “Barr’s actions make no obvious sense if he’s not trying to cover up something, and given his past bizarre and disruptive actions to benefit the President at the cost of the DOJ, he should be assumed to be up to no good.”
      Because you say so ?
      Berman was court appointed. It is very rare for an administration to keep a court apointed US Attorney.

      That is all that is needed here.

      ” Relying on IGs in this administration is a bad joke”
      Horowitz has done fine.

      The rest appear to have been more obstructive.

      “Trump fired 4 in the last couple of months for obvious personal benefit. ”
      because you say so ?

      “Those remaining can be considered gun shy or heroes, but not normal functioning IG’s.”
      Again because you say so ?

      Congress has oversight authority – if democrats want to waste more time.
      Maybe this time they can do it right, instead of a kangaroo court.

      “JT once again misrepresents the Mueller Report in claiming “collusion” was not proven.”
      Ni it was disproven – about as much as it is possible to disprove a negative.

      “How many times is he going to repeat this lie.”
      Until you grasp it is actually true.

      “Someone not a law professor could be accused of just simple ignorance, but JT does not have this excuse.”
      What is yours ?

      “He has not commented on the un-redacted pages from the report released only last week which show that Trump was in contact with Stone about Wiki-leaks releasing Russian provided info and that Trump lied to Mueller about this fact. Come on!”

      Given that even CrowdStrike has testified under oath they do not know who hacked the DNC
      AND there is no evidence the emails were released via a HACK the stone claim is nonsense.

      Stone had no direct contact with Wikileaks. Even the Stone farce trial established that.
      In fact no one had any meaningful contact with wikileaks and learned nothing from wikileaks before it was made public.

      Regardless, you do understand that Horowitz pretty much F’d over Mueller’s credibility, and the recently released information that the FBI knew that XFH was over in early January 2017 just ices it.

      For Mueller to not be dishonest, he would have to have not known what the FBI knew in Jan 2017 for 22 months.
      Even Rosenstein confirmed that by Aug 2017 he knew there was no substance to the Trump/Collusion allegations.

      So why did Mueller continue ?

      Do we investigate fake crimes ?

  3. Take the long view about Trump. He ran for POTUS for the power and adulation because he is a narcissist. He was the first presidential candidate in 40 + years to refuse to disclose tax records, but we do know he did business dealings with Russians because no US bank would loan him any money due to multiple bankruptcies, plus he couldn’t get credit-worthy partners any more. He cheated with the help of a hostile foreign power to “win the victory”, by his Russian friends posting lies about his opponent on social media, as directed by his campaign. Then, the endless lying started: beginning with the size of the inaugural crowd. He refused to cooperate with the Mueller investigation, obstructed justice, hid documents, procured the lack of cooperation for witnesses and railed against Jeff Sessions for complying with the Rules of Professional Conduct. He got an AG who is nothing but his personal fixer–who tries to drop criminal prosecutions after guilty verdicts, and now, who fired the NYSD prosecutor for reasons that no doubt relate to protecting Trump from prosecution and/or disclosure of financial information proving that he’s not as wealthy as he claims. Via McConnell, there have been a record number of right-wing federal judges appointed, after blocking Barak Obama’s nominees, including Merrick Garland to the SCOTUS, including a record number of candidates declared unqualified by the ABA. He tried to get Ukraine to gin up a fake claim of investigation of Joe Biden, in exchange for military aid. He tried to get China to help him get re-elected. He has had a record number of departures of people from his cabinet, and despite effusively praising them when he appointed them, attacks and insults them after they leave. He has done everything possible to prevent the American people from learning the truth about him from people like John Bolton–who did submit the book for review and made changes, but then suddenly the book had to be reviewed again. The House voted to impeach his ass, and 48 U.S. Senators voted to remove him from office, including one Republican.

    This country cannot take any more of this creature.

    1. Natacha – other than setting himself up for a perjury trap, Trump cooperated completely with the Mueller commission. I am still waiting for your SAT, LSAT and BMI scores.

    2. “Take the long view about Trump. He ran for POTUS for the power and adulation because he is a narcissist.”
      True of every politician.
      “He was the first presidential candidate in 40 + years to refuse to disclose tax records”
      So ?
      “but we do know he did business dealings with Russians (banks)”
      So ?
      “because no US bank would loan him any money due to multiple bankruptcies, plus he couldn’t get credit-worthy partners any more.”
      Deutchebank possibly one of the most conservative in the world was willing to loan him money.

      “He cheated with the help of a hostile foreign power to “win the victory”, by his Russian friends posting lies about his opponent on social media, as directed by his campaign.”
      Long ago debunked. The truth is that his opponent conspired with a hostile foreign power to get dirt on him. but garbage and sold it to the FBI – who know it was garbage and used it anyway.

      “Then, the endless lying started”
      You mean about the witch hunt and being spied on, and having his campaign tapped ?

      “He refused to cooperate with the Mueller investigation, obstructed justice, hid documents, procured the lack of cooperation for witnesses and railed against Jeff Sessions for complying with the Rules of Professional Conduct.”
      False.

      He cooperated fully with mueller – even though we now know that the mueller investigation was not legitimate and Rosenstein and Mueller knew it. Provided Mueller with everything he asked for, never claimed a priviledge, never went to court to block any mueller request. ”

      Sessions misapplied the rules. there was no conflict, and less appearance of conflict than Meuller, Rosenstein and the entire Mueller team had – appearently you beleive ethics rules only apply to republicans.

      “He got an AG who is nothing but his personal fixer–who tries to drop criminal prosecutions after guilty verdicts, and now, who fired the NYSD prosecutor for reasons that no doubt relate to protecting Trump from prosecution and/or disclosure of financial information proving that he’s not as wealthy as he claims.”
      Barr is a fixer – there is a huge mess in DOJ and FBI that needs fixed.
      IF dropping prosecutions after guilty verdicts is a crime – then why isn’t Holder in jail.

      Honestly – the claim now is that Berman was fired to hide Trump’s lower than claimed net worth ?

      Why is that Berman’s business ?
      Why is that yours ?

      “Via McConnell, there have been a record number of right-wing federal judges appointed”
      Actually federalists, they are quasi libertarain which is not particularly right wing.
      Though there are a few lemons this is overall the best slate of federal judges in my lifetime.

      “after blocking Barak Obama’s nominees, including Merrick Garland to the SCOTUS,”
      Elections have consequences – who said that ?

      “including a record number of candidates declared unqualified by the ABA.”
      Nope, there are a few unqualified candidates – every president screws up.
      But the big conflicts with the ABA were tied to a small number of people int he ABA with a long history of animus.

      And you remember that ethics thing ? They should not have been evaluating condidates they had personal animus too.

      “He tried to get Ukraine to gin up a fake claim of investigation of Joe Biden”
      Pretty real claim.

      “in exchange for military aid”
      That would be Biden.

      “He tried to get China to help him get re-elected.”
      Really ? That would be the country with 3 Super Carrier tasks forces surrounding it right now ?
      That would be the country fighting with India that Trump has taken sides with ?
      That would be the country that Trump blames constantly for Covid19 ?
      That would be the country that is heavily invested in Hawei that Trump is deliberately bankrupting ?
      That would be the country that Trump has had a trade war with for most of his administration ?

      You really think that Xi has any interest in helping Trump ?

      Of course you do, you beleive that Putin helped Trump even though nothing could be worse for Russia than Trump releasing the fracken.

      “He has had a record number of departures of people from his cabinet, and despite effusively praising them when he appointed them, attacks and insults them after they leave.”
      So ?

      “He has done everything possible to prevent the American people from learning the truth about him from people like John Bolton–who did submit the book for review and made changes, but then suddenly the book had to be reviewed again.”
      National security approval for books usually takes 3 years.

      Regardless – read the book. I know that one ego maniac telling another he is crazy, will be catnip to you.

      But ask yourself – do you think going to war with Iran would be a good thing ?
      If you say no – then you understand Why Bolton is gone, and why he is saying nasty things about Trump.

      “The House voted to impeach his ass”
      Without holding a proper inquiry.

      “and 48 U.S. Senators voted to remove him from office”
      Nope, a guilty verdict and removal are separate votes, Because the former failed the latter never happened.

      “This country cannot take any more of this creature.”

      Yes bring on puppet Joe.
      Who can not remember who he molested.

    3. Another victim of MSM lies. Hook. Line & sinker. Can well educated, relatively intelligent people (or not perhaps) who read a blog such as this actually believe MSM mainline news refuse? Either you are asleep at the wheel or willfully negligent.

  4. Hello to new subscribers. Let me share a time-saver with you. After you read JT’s columns, read the comment section for one week. After that you can just skip the comment section because if you are of reasonable intelligence, you will know what all of the usual commenters will say without ever having to read them again. Trust me on this.

  5. Jonny, your sycophantic support of all things Trump is sickening. Yes, Bolton is a degenerate who loves his own pomposity and money more than the country. Yet to allege there are classified national interest “secrets” (like your article implies) cries out for justice, not support for Trump’s self-aggrandising contempt for the country and the people around him. Since the book basically has been published prior to the court hearing, it is obvious to all but the Trump myrmidons (you being one) that there are no secrets other than Trump’s underhanded and abhorrent uses of his position. Just one more black mark on your record, Jonny.

    1. Why do you refer to Professor Turley as “Jonny”? Is that a name he goes by, or are you simply being rude?

      1. Fox, you probably realize, that post has all the earmarks of “Natacha”

        *refers to Professor by first name rudely
        *claims he is a Trump sycophant and is damaging his reputation here
        *claims special insight into other people’s innermost thoughts

        1. Nope. Wasn’t me, but I agree with the post. When Turley carries water for a fat, lying narcissist, he can hardly expect to command the decorum due a professor. (Besides, I am equally well-educated). When you trade on your credentials to try to justify someone who cheated to win a high office just for the power and adulation, who obstructs justice, who lies, who is a racist, and who tear gasses Americans to create a campaign photo-op, you lose respect and credibility. Turley spins the facts to benefit Trump, too. Just like Trumpy Bear forfeits the title “President”–something procured by cheating– something he doesn’t deserve.

          1. Natacha – still waiting for your SAT, LSAT and BMI scores as promised. Trump tries to keep his promises, don’t you?

            1. “Here Are the 100 U.S.
              Cities Where Protesters
              Were Tear-Gassed”

              By K.K. Rebecca Lai, Bill Marsh and Anjali SinghviUpdated June 18, 2020

              https://www.nytimes.com/interactive/2020/06/16/us/george-floyd-protests-police-tear-gas.html

              https://twitter.com/NathanBacaTV/status/1268546711452094464

              Nathan Baca
              @NathanBacaTV
              ·
              Jun 4
              Breaking: police canisters gathered by
              @wusa9
              crews Monday night show federal police DID use artificial CS tear gas in addition to natural OC gas on #BlackLivesMatter #WashingtonDCProtests Asking
              @usparkpolicepio
              &
              @realDonaldTrump
              for response on statements claiming otherwise.

              ___________

              ‘Try to keep up’, FFS.

    2. Just what channels are you tuned into to think Trump hates the country? His actions have been more than clear, he hates the massive political corruption and he is doing what he can to drain it. He’s a man who has worked hard to employ all Americans, he could do the Obama route and just destroy the base and gain riches for all his corrupt political friends, or he can do what extremely hard and fight the machine. I have to applaud him for what he’s been able to accomplish during the worst 4 years in political history, I mean how is that man still standing, let alone standing strongly for the American people.

  6. WHAT, wait a minute, Trump said he only hires the best. It’s hard to keep track, how many has it been that Trump hired and said they were the best. And then had someone else fire them.

    1. FishyWings, where did you hear that Trump “hired” Berman? He is another holdover that Trump was foolish enough to believe was a career impartial prosecutor, who he could trust to do his job, without political interference.

      And, let’s get something else straight, the U.S. attorney was ot “fired by someone else.” He put in a letter of “resignation,” after asked to do so by AG Barr, his boss.

      1. a) Berman was not a “holdover.” He was named an interim US Attorney for SDNY on 1/3/2018: https://www.justice.gov/opa/pr/attorney-general-sessions-appoints-17-current-and-former-federal-prosecutors-interim-united Your claim that Berman “put in a letter of “resignation,” after asked to do so by AG Barr, his boss” is false. Berman specifically refused to do so: https://twitter.com/SDNYnews/status/1274178732476059650 as Barr had no legal right to demand Berman’s resignation or to fire Berman. After Barr then backtracked and said Trump (not Barr) was firing Berman and also confirmed that Strauss would step in as interim USA rather than Carpenito, Berman chose to resign rather than test in court whether Trump could legally fire him.
        b) This article is about Bolton, and Trump appointed Bolton too.

        1. “a) Berman was not a “holdover.” He was named an interim US Attorney for SDNY on 1/3/2018: https://www.justice.gov/opa/pr/attorney-general-sessions-appoints-17-current-and-former-federal-prosecutors-interim-united
          Correct.

          “Your claim that Berman “put in a letter of “resignation,” after asked to do so by AG Barr, his boss” is false.”
          Correct.

          “Berman specifically refused to do so: https://twitter.com/SDNYnews/status/1274178732476059650
          Correct
          “Barr had no legal right to demand Berman’s resignation”
          False
          “to fire Berman.”
          Correct

          “After Barr then backtracked and said Trump (not Barr) was firing Berman”
          Correct.
          “confirmed that Strauss would step in as interim USA rather than Carpenito,”
          “Berman chose to resign rather than test in court whether Trump could legally fire him.”
          There is no test, he can.

      2. Justice, Berman is a longtime Republican (and Trump donor) who was appointed by Jeff Sessions. He was thought to be sufficiently loyal to the Republican establishment.

      3. Berman was court appointed.

        It is the norm for court apointed US Attorney’s to be replaced by the president.

        Barr asked him to resign so the president could appoint a replacement as is the norm.
        Barr offered Berman other senior roles if he would do so.
        Berman refused – so he was fired.

        Simple.

    2. if Trump said he only hires the best,

      THAT WAS THE BIGGEST LIE HE’S TOLD SO FAR

      otherwise it would be a very different picture than it is today. actually seems like some of his other advisors not just bolton, were incompetents, too

      if he gets another shot at it, he better do better. he can start with getting the campaign moving properly any day now….

  7. KEY PASSAGE FROM COLUMN:

    “The book actually did pass a classification review but was suddenly subjected to a highly irregular secondary review. That duplicate review was performed by the National Security Council senior director for intelligence, Michael Ellis, who had been on the job only two months and declared portions of the book classified. Further, the Justice Department admitted Ellis did not have “original classification authority” until a day after he finished his review of what Bolton wrote”.

    1. I have no idea what happened with Bolton’s book, but the norm is that it takes several years to get the works of someone who worked int he intelligence community approved for publication.

      That is even true for works of fiction. There are several former members of the Intelligence community who have had to wait 3 or more years to publish works of fiction.

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