In the very first paragraph of the Justice Department’s late night application for an emergency TRO blocking publication of John Bolton’s book (affiliate link), the government compares Bolton to a traitor selling government secrets to an enemy state.
“A National Security Advisor to a sitting President possesses national security information like few others,” it intones solemnly. “Were such a person to offer such information for sale to foreign governments, all would readily acknowledge the wrongdoing involved.”
Oh, yes they did.
And then it got even batshittier, with the government insisting that an injunction on Bolton’s White House tell-all isn’t a prior restraint on speech, it’s simply an extension of Bolton’s employment contract.
“Nothing in the First Amendment prevents the United States from securing an injunction requiring a former high-ranking official with unique access to sensitive information, such as Defendant, to abide by the agreements he signed,” the government argues, ignoring that inconvenient Pentagon Papers precedent. “It is settled law that restrictions on the publication of classified information are judicially enforceable.”
The DOJ goes on to cite a whole series of cases in which the validity of government NDAs was upheld and the government was able to seize the proceeds post-publication, but none in which a court ordered a defendant not to publish beforehand. The closest it gets is in a footnote, where it mentions language from a precedential case in the D.C. Circuit, but says that actually the court was wrong, so Judge Royce Lamberth should ignore it, okay?
In dicta, the court noted that the CIA had “not sought an injunction against publication of the censored items” and stated that if the CIA had sought “judicial action to restrain publication, it would [have borne] a much heavier burden.” McGehee, 718 F.2d at 1147 n. 22 (citing, e.g., Snepp, 444 U.S. at 513 n. 8, and N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam)). But the cited language in Snepp does not support this assertion. Indeed, the cited portion of Snepp cited to two cases, which include language that, if anything, undermines the notion that the government would bear a heavier burden where it—rather than the author—sought relief.
The government goes on to posit that Bolton’s book isn’t even really speech at all, it’s, uhhhh, contraband. Ipso facto propter hoc, the government doesn’t even have to add publisher Simon & Schuster as a defendant to force it to pulp the book.
Under these principles, when the producer of a product is enjoined from distributing it, courts have subjected the product’s distributors to the same injunction. For example, in Aevoe Corp. v. AE Tech Co., 727 F.3d 1375 (Fed. Cir. 2013), the Federal Circuit explained that the distributor of an infringing product—which obtained the product from the infringing producer and sold it in the marketplace—was “‘acting in concert’ with [the producer] in connection with the resale of” the product and thus was bound by an injunction against the sale of the product.
According to Bill Barr’s DOJ, under Federal Rule 65(d), Simon & Schuster count as “officers, agents, servants, employees, and attorneys; and other persons who are in active concert or participation” with Bolton, and are thus bound by the requested injunction. Ditto for any book sellers who might have pallets of Bolton’s manuscript sitting in the stockroom ready for the shelves on Tuesday. This embarrassingly weak argument was also buried in a footnote, natch.
But if the government’s case is shaky on the law, it’s even more laughable on the facts. Every reporter in DC appears to have an advance copy of Bolton’s manuscript, details of which appeared in the New York Times, the Wall Street Journal, and The Washington Post last night. And yet the government insists that “unauthorized disclosure of this information could reasonably be expected to enable foreign threat actors to cause serious, and sometimes grave, damage to our national and economic security.” Which is rather like demanding that the barn door be locked up tight when the horse galloped across the county line an hour ago.
If everybody from Stephen Colbert to Ben Wittes already has a copy and thousands of units have already shipped out to retailers, then Kim Jong Un doesn’t have to wait by the door for the Amazon delivery guy to find out whatever classified secrets Bolton spilled. They’re already out there in the world, and an injunction might prevent further embarrassment for the president, but it won’t harm national security. Because the damage has already been done.
In fact, the weakest part of the the government’s argument is its insistence that Bolton is in breach of his contract because he shared the manuscript with his publishers and simultaneously about to breach the contract by selling the book to the general public. He’s like the Schrödinger’s Mustache of national security — his exact location is impossible to pin down!
And according to the Commander in Chief who is definitely not losing his shit right now, the book is both entirely classified and also full of lies. (Although he’s not suing for libel, because … reasons.)
Truly, the former National Security Advisor contains multitudes!
But even if Bolton hadn’t already breached the contract by sharing classified information, the remedy isn’t specific performance by prior restraint. It’s damages, as in Snepp and the case of Matt Bissonnette, the Navy SEAL who was forced in 2016 to disgorge $6.8 million in profits from an unreviewed book on the raid to kill Osama bin Laden. The government couldn’t stop the publication, but they could take the money afterwards.
Which is probably not what Bolton’s lawyer Chuck Cooper will argue at tomorrow’s hearing on the TRO, since his client would doubtless prefer to keep that $2 million advance and all the royalties from the members of the general public who actually pay for their books. Thanks to the president’s manic hate-tweeting, Bolton’s book is now #1 on Amazon’s bestseller list. And thanks to the miracles of technology, we can all listen in at 1pm tomorrow to find out how the hearing goes.
And what a fine case for Jody Hunt, the head of the DOJ’s Civil Division, to end his government career on. Mazal tov, sir, on going out with a bang!
EMERGENCY APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION [U.S. v. Bolton, No. 120-CV-01581-RCL (D.D.C. June 17, 2020)]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.
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