With shades of historic First Amendment court battles from decades past and high stakes given the country is in the midst of a presidential election year, a D.C. federal judge refused to halt the imminent release of John Bolton’s The Room Where It Happened. At the conclusion of a Friday hearing, he took the matter under submission. On Saturday, the judge made it official: A restraining order wouldn’t be granted.
The Trump administration filed its lawsuit against Bolton on Tuesday and moved for to block the book on Thursday despite the fact that it had already been sent to retailers around the nation, despite how many newspapers have already spilled the juiciest contents of the book in their own published stories, and despite Bolton pretaping an interview with ABC News that is set to run this weekend. The government’s complaint alleges that the book’s publication breaches Bolton’s confidentiality obligations as former national security adviser and that he is flouting a contract that requires him to submit material to the government for prepublication review.
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That the government has the right to enforce secrecy agreements with officers who see classified information is confirmed by the Supreme Court’s 1980 decision in Snepp v. United States, but here, the question isn’t merely whether the government is likely to prove Bolton has breached security. (He argues that he spent months seeking prepublication clearance, that he was led to believe that the current iteration of his book contained no classified secrets, and that government’s attempt to block is pretextual.) A federal court also had to wrestle with an injunction that would act as a “prior restraint” on free speech. That evoked comparisons to the famous Pentagon Papers case from 1971.
The First Amendment implications in Trump’s attempt to block Bolton swiftly attracted interested third parties including the American Civil Liberties Union, the Association of American Publishers, PEN America and the Reporters Committee for Freedom of the Press. In amicus briefs submitted shortly before today’s hearing, these groups sounded the alarm about the proposed restraint, which went as far as a demand that booksellers around the nation should also be subject.
U.S. District Court Judge Royce Lamberth, who had quickly consented to a virtual hearing to entertain the motion for a restraining order, also had to wrestle with the question of whether the government could really show imminent harm given how the book’s eyewitness account of Trump’s fumbling and arguably corrupt dealings with foreign leaders had already reached the public sphere.
Lamberth began the hearing by acknowledging that. “The horse, as we used to say in Texas, seems to be out of the barn,” he said, before asking the DOJ what he can really do in this situation. David Morrell responded that the injunction isn’t an “all or nothing” request and there’s “massive government interest” in limiting further distribution and making sure the prepublication requirement isn’t “willy-nilly breached by disgruntled authors.” He suggested Simon & Schuster could claw back the books from distributors and give them to the government and it could still be possible to prevent the distribution of electronic and audio copies.
One central issue is when some of the information the DOJ believes is classified was deemed as such and whether that happened after Ellen Knight, a senior director at the National Security Council, completed her review of Bolton’s book and found no classified information. Morrell said one example was classified after NCS’s Michael Ellis completed a second review (one Bolton says he wasn’t made aware of) and two other examples would require additional research.
Lamberth also asked whether Trump instructed officials to designate portions of the book as classified. Morrell said he hasn’t talked to the president and doesn’t know. He also defended that it was “entirely appropriate” for a second NSC official to conduct a review given that Bolton was national security adviser and is “providing details about ongoing policy matters during the same administration in which he served” and said “there are certain passages in his book that will damage the national security of the United States.”
Later, Bolton’s lawyer Charles Cooper argued Lamberth is “utterly powerless” to do anything and this isn’t really a judicial proceeding. “It’s theater,” he said. “It’s to use your courtroom as a stage and enlist you as a player.”
Cooper argued Bolton fulfilled his contractual obligation and only would have needed further written permission if Knight had found there to still be classified information in the final manuscript after making the author remove confidential, secret and top-secret information over four months of review. He noted that an amended complaint filed Friday morning takes the teeth out of his motion to dismiss, and he’ll refile as a summary judgment motion if he has to. Now there’s talk of sensitive compartmented information, or SCI, which was covered under a separate confidentiality contract and would require a written release before Bolton could publish.
Bolton’s lawyer argued that Knight never mentioned a concern about SCI and the government never even hinted that there might be until these filings. He suggests the information may have been “retroactively classified.” Cooper also noted that Ellis had only recently received classification authority and it was “unlikely in the extreme” that he’d ever completed a prepublication review before this one — and argued that there’s training required to enable that authority that Ellis didn’t complete until the day after he finished his evaluation of Bolton’s book.
After a two-hour hearing, Lamberth opted to take the matter under submission. The DOJ had more evidence to share about the classified information allegedly contained in the book and the court agreed to conduct an in-camera review.
UPDATE 6/20 11 AM EST:
Lamberth has denied the TRO. On one hand, he does conclude that the government is likely to prevail on the merits of its claims — the first prong needed for an injunction.
The judge writes, “Bolton disputes that his book contains any such classified information and emphasizes his months-long compliance with the prepublication review process. He bristles at the mixed messages sent by prepublication review personnel and questions the motives of intelligence officers. Bolton could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion. Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong.”
But the plaintiff can’t rise to the second test, that it can show irreparable harm.
The opinion continues, “According to Simon & Schuster Chief Executive Jonathan Karp’s affidavit, ‘[m]ore than 200,000 copies of the Book have already been shipped domestically . . . to retail booksellers large and small, from large national chains and online entities to a host of small, independent, booksellers.’ Indeed, ‘thousands of copies of the Book [have been shipped] to booksellers around the world, including in Continental Europe, India and the Middle East.’ Reviews of and excerpts from the book are widely available online. As noted at the hearing, a CBS News reporter clutched a copy of the book while questioning the White House press secretary. By the looks of it, the horse is not just out of the barn—it is out of the country.”
The book will come out. But the case continues, and the government may continue to pursue Bolton in order to send a message that dissuades others from attempting to do what he did here.
