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John Bolton is back! Seems he reached the belated conclusion that stiff-arming congress for evidence of Trump’s wrongdoing, only to turn around and sell it to Simon & Schuster, might not endear him to the book-buying public.
According to The New York Times, Bolton, who refused to testify to the House without a court order, is now hot to spill the tea to the Senate because he “believes he has relevant information, and he has also expressed concern that if his account of the Ukraine affair emerges only after the trial, he will be accused of holding back to increase his book sales.” It’s a distinct possibility!
Although his lawyer insists the leak came from the White House, which has been reviewing Bolton’s manuscript, keen observers will note the story dropped just hours before Amazon started taking pre-orders for the tentatively-scheduled March 17 release of his book, “The Room Where It Happened.” Which is some extremely conveniently-timed publicity!
However Maggie Haberman and Mike Schmidt got their hands on it, this story functions as a proffer of Bolton’s impeachment testimony. As they reported last night:
President Trump told his national security adviser in August that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens, according to an unpublished manuscript by the former adviser, John R. Bolton.
Which throws a hell of a wrench in Mitch McConnell’s plan to vote down new witnesses or evidence this Wednesday and get this impeachment over with before the Super Bowl. It’s also going to give Brad Moss, the most active national security lawyer on Twitter, an aneurysm. Because graduates of Twitter Law School are taking conclusory legal rhetoric a little too seriously.
In the cover letter submitting Bolton’s manuscript for a prepublication classification review his attorney Charles J. Cooper wrote:
As I mentioned, Ambassador Bolton has carefully sought to avoid any discussion in the manuscript of sensitive compartment information (“SCI”) or other classified information, and we accordingly do not believe that a prepublication review is required. We are nonetheless submitting this manuscript out of an abundance of caution, as contemplated by the nondisclosure agreements that he entered, commencing with those of April 5, 2018 immediately prior to his entry on duty.
As Moss spent all last night explaining, Cooper can say that there’s nothing classified in Bolton’s book and thus the review is a mere courtesy, but it ain’t necessarily so.
And if Bolton simply makes a public statement without prior clearance from the White House, he’s open to prosecution for any information that is retroactively classified.
Eventually, Moss just gave up and tweeted out an article he wrote in Lawfare explaining the prepublication review process to cull classified data.
Moss explained in 2018 that the Standard Form 312, “Classified Information Nondisclosure Agreement,” contractually bars government employees from disclosing classified information. By submitting their work for prepublication review, authors can definitively shield themselves from prosecution for later classification decisions. There is robust standard of judicial review, and courts will not permit the government to abuse the process to simply censor embarrassing information.
BUT …
If the individual does not follow that process, the courts have been clear time and time again that they will side with the government if and when it ultimately takes legal action—whether civil or criminal—against the individual, no matter how flimsy the underlying classification determination may have been.
And yet, at least one senator has already endorsed such a risky disclosure, with Nebraska Republican Deb Fischer saying, “It doesn’t take a subpoena to put out a statement. If Ambassador Bolton has something to say, he could do that.” Which would have effect of relieving GOP senators of the obligation to vote for or against calling witnesses at Trump’s impeachment trial. But it would also expose to him to serious civil and criminal liability. And there’s a lot you can say about John Bolton, but the man is not a fool.
Trump Tied Ukraine Aid to Inquiries He Sought, Bolton Book Says [NYT]
Cooper Letter to Records Management re Bolton Prepublication Review [posted by Axios]
Why the White House Can’t Stop Omarosa Manigault-Newman From Talking [Lawfare]
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
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