On 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.