John Bolton, presumably playing Call of Duty: Modern Warfare (Photo by Kirk Irwin/Getty Images for SiriusXM)
In the nine months since he got ignominiously fired from his job as National Security Advisor, John Bolton has made a series of spectacularly bad bets.
He bet that if he forced House Democrats to sue him to testify in the impeachment hearings, he could play the reluctant witness and preserve his standing with the Republican party. Except the Democrats dropped the suit and moved on without him. Whoopsie! Bolton bet that if he agreed to testify under subpoena, Republicans would call him to give evidence in the Senate impeachment trial. Wrong again.
Then Bolton bet that he could force the Trump White House to expeditiously sign off on his 592-page tome trashing the administration; that the president and his henchmen, whom Bolton describes as guilty of “Ukraine-like transgressions … across the full range of his foreign policy,” and never doing anything “that wasn’t driven by reelection calculations” would scrupulously refrain from abusing the classification process to bury his hit piece until after November. ROFLMAO!
And now Bolton is betting that the DOJ won’t try to throw him in jail and bleed him for every penny he’s got as retribution for going to press without getting the National Security Council to vouch that his book contains no classified information. Which seems rather unwise.
If John Bolton gives you a stock tip, maybe don’t bet the mortgage money on it?
Because yesterday Bill Barr followed through on Donald Trump’s threat to unleash the hounds of justice on his former NSA. Well, sort of.
“That’s criminal liability, by the way. you’re talking about. You’re not talking about, like, he’s got to return three dollars that he made on a book,” the president ranted to the press on Tuesday. “That’s called criminal liability. That’s a big thing. You know, Hillary Clinton, she deleted 33,000 emails. And if we ever found out what those emails say, she would’ve had a liability.”
The DOJ hasn’t charged Bolton criminally, YET. But it did sue him alleging breach of contract and fiduciary duty for failure to abide by the strictures of his non-disclosure agreement and get the government to sign-off that the manuscript contains no classified material. Which is not the same as seeking an injunction against the publisher seeking to prevent publication of the book — Heaven forbid! — because this White House is deeply committed to the First Amendment and protecting free speech.
“The United States is not seeking to censor any legitimate aspect of Defendant’s manuscript;” the complaint assures us. “It merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated publicly.”
The DOJ doesn’t want the court to order Simon & Schuster to pulp the book. It wants the court to order John Bolton to order Simon & Schuster to pulp the book. And that’s completely different.
But the DOJ knows that argument is going nowhere, which is why it didn’t even bother to sue S & S other than mumbling something about the court binding “Defendant’s agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant’s book.” Unless Bill Barr has busted out an application for a TRO or preliminary injunction in the past ten minutes, Bolton has 21 days to respond to the complaint, by which time the point will be moot, since the book is due to come out on Tuesday, June 23.
The Department can barely be bothered with this nonsense, making only a halfhearted gesture toward asking the court to “Enter an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened” and “take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party.”
Because this case is really about the money. The Trump administration wants to make it as expensive as possible for Bolton to go through with publication, in hopes that if they squeeze him hard enough, he’ll tap out and pull the book himself.
What they really want is for the court to “impose a constructive trust for the benefit of the United States over, and require an accounting of, all monies, gains, profits, royalties, and other advantages that Defendant and his agents, assignees, or others acting on his behalf have derived, or will derive, from the publication, sale, serialization, or republication in any form, including any movie rights or other reproduction rights, of The Room Where it Happened.” Because if Bolton has to disgorge his $2 million advance and all the royalties from this book, on top of the hundreds of thousands of dollars he’ll have to pay Chuck Cooper to litigate the case, he might just back down and let the White House sit on that book forever. Or at least until after the election.
And if the money isn’t inducement enough, there’s always the implicit threat of criminal prosecution. You know, in case Donald Trump’s threat to LOCK HIM UP wasn’t clear enough.
NSC has determined that the manuscript in its present form contains certain passages—some up to several paragraphs in length—that contain classified national security information. In fact, the NSC has determined that information in the manuscript is classified at the Confidential, Secret, and Top Secret levels. Accordingly, the publication and release of The Room Where it Happened would cause irreparable harm, because the disclosure of instances of classified information in the manuscript reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.
Very subtle! Almost as subtle as redacting the defendant’s email but not his address, lest anyone think that the omission was unintentional.
So far, it doesn’t look like Bolton and his publisher are blinking. Cooper promises that his client “will respond in due course,” and Simon & Schuster issued a statement calling the lawsuit “nothing more than the latest in a long-running series of efforts by the administration to quash publication of a book it deems unflattering to the president.”
NatSec lawyers Mark Zaid and Brad Moss are confident that the government will get its pound of flesh.
But ACHTUNG, BREAKING this case has just been assigned to U.S. District Judge Royce Lamberth, who has been harshly critical of government overreach and has said that courts are too deferential when the government slaps a “classified” label on information to keep it out of public view. So … this will get interesting.
Get your popcorn ready, kids, this one should be good!
Complaint [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.