The Morning Dispatch: Can the White House Block John Bolton’s Book?

Happy Thursday! The actual biggest news of the day was an independent arbitrator ruling in favor of the Cubs in the Kris Bryant service-time grievance, but we’ve been told that’s “too niche” of a newsletter topic. So here’s a couple thousand words on impeachment, John Bolton, and Doug Collins instead.

Quick Hits: Today’s Top Stories

• At a ceremony on the South Lawn of the White House, President Trump officially signed the USMCA trade agreement into law.

• The Federal Reserve announced it would continue holding interest rates steady in an effort to boost inflation toward its 2 percent targets.

• Life expectancy in the United States increased in 2018 for the first time in four years, according to CDC data.

Q&A Time in the Senate

Looking back, when Majority Leader Mitch McConnell announced last week that the White House and Democrats would each have three session days to make their opening arguments in the impeachment trial, it seems we didn’t fully grasp exactly what that entailed. Three days, it turns out, is a staggeringly long time to hear a group of people present a single, protracted case. Of the small group of political junkies who even tried to pay attention to the entire thing, we’re reasonably confident not one managed to maintain their focus the whole time—and that includes all 100 U.S. senators.

But you know what’s more engaging than back-to-back three-day lectures? That’s right: Q&A. The current leg of the trial, which began Wednesday and wraps up today, is reserved for senators to question the impeachment managers and White House lawyers. That hasn’t led to much in the way of rhetorical fireworks: In keeping with the staid and somber tone that’s supposed to govern these proceedings, senators remain silent and submit their questions in writing. But it has led to some interesting and enlightening exchanges Wednesday and will doubtless lead to more today.

The most crucial question might have been the one that came first. Sens. Susan Collins, Mitt Romney, and Lisa Murkowski—the three GOP moderates whom Democrats hope might yet be gettable for a vote to subpoena new witnesses—asked the White House counsel what the Senate should do if they assessed Trump to have had both a personal and a public motive in his dealings with Ukraine. What they were asking was: What if Trump wanted to pressure Ukraine into committing to investigations both to hurt a political opponent and to root out an instance of political corruption while he was at it? Is that impeachable?

Attorney Patrick Philbin argued that it didn’t matter whether or not Trump had a personal interest in those investigations. In order to justify impeachment, Democrats would have to prove there was no “possible public interest motive” to Trump’s actions. If such a potential motive was in any way plausible, it simply didn’t matter whether Trump harbored corrupt intent.

“To have even a remotely coherent theory, the standard [impeachment advocates] have to set for themselves is establishing there is no possible public interest at all for these investigations,” Philbin said. “And if there is any possibility, if there is something that shows a possible public interest and the president could have that possible public interest motive, that destroys their case.”

This striking line of argument was taken several steps further later in the day by another Trump attorney, Alan Dershowitz. Instead of simply arguing that it didn’t matter if Trump executed an element of his foreign policy to take down a political opponent because theoretical motives exist for doing such a thing in the national interest, Dershowitz claimed that Trump’s wanting to take down a political opponent could qualify as a public-interest motive in and of itself.

“Every public official that I know believes that his election is in the national interest,” Dershowitz said. “And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment … A complex middle case is: ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was. And if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.”

Getting to 51 votes.

It’s worth keeping in mind that, while all this rhetorical sparring was going on in public yesterday, Sen. Mitch McConnell and his allies were hard at work on the more private, more consequential argument of the day: Trying to wheedle the fence-sitting GOP moderates back onto his team and prevent a vote to subpoena more witness testimony from the likes of John Bolton. If they get there, that’s pretty much the ball game—without new witnesses, Republicans will move like lightning to acquit the president, and our nation’s third ever impeachment trial will be history. 

And after a day of seeming uncertainty, McConnell and Co. are sounding more and more confident that they will get there. If the moderates are picking up what GOP leadership is laying down, keep an eye out for a moment in today’s questioning where they signal that impeachment managers have “lost” them. There’s a growing chance this whole thing ends not with a bang, but a whimper.

And Speaking of John Bolton…

Yesterday afternoon, Chuck Cooper, John Bolton’s attorney, publicly released an email he sent the senior director of the NSC Access Management Directorate asking the NSC to complete its prepublication review of Bolton’s manuscript, which is set to publish in about six weeks.

There’s plenty of confusion surrounding this process, and for good reason. Here’s a summary of what we know.

Where does the requirement for prepublication review come from? For most government employees who hold a security clearance, the prepublication review process isn’t mandatory. It’s simply incumbent on the employee to ensure that she doesn’t divulge classified material if she decides to write a book. If a government employee holds a Top Secret/Secret Compartmentalized Information (TS/SCI) clearance, however, prepublication review becomes compulsory, and employees sign a piece of paper agreeing to as much before getting their clearance. 

What is the punishment if a former employee with a TS/SCI clearance publishes a book (or op-ed, or speech) without submitting it for prepublication review? The executive branch can sue the employee for breach of contract and establish a constructive trust to collect any funds associated with the book’s publication, including any advance from the publisher and royalties for as long as the book is in circulation. 

Some important notes here: 

1. This is a civil suit; there are no criminal penalties for ignoring the prepublication review requirement.

2. The government can sue regardless of whether the book contained any classified information. Not submitting the work for review is what breached the contract, regardless of the contents published. 

3. At this point, there are no punitive or compensatory damages available to the government. So if the employee published the book in question for free, the government has no damages to collect.

4. According to Mark Zaid, a leading attorney on classification and related matters, plenty of former TS/SCI employees have ignored the prepublication review requirement, and some even published classified material after doing so. But he could only think of five people who had ever been sued. 

So what’s involved in the prepublication review process? Generally speaking, the former employee submits the manuscript to his or her erstwhile agency. The agency, then, lets the author know if it finds any classified information. At that point, the author can either remove the parts in question, or can push back. The problem is that the executive branch determines what is classified, which means even if the author was the original classifying authority, he or she doesn’t have the final say. The former employee can, in theory, go to court and ask a judge to weigh in, but, according to Zaid, the executive branch often, if not always, wins in the end.

This all sounds pretty straightforward so far, right? Not quite. The prepublication review requirement applies to sharing a manuscript with anyone who doesn’t have a clearance. So when she sends the manuscript to her publisher, lawyer, agent, or ghost writer, she is technically violating this requirement. As a practical matter, these cases are never brought because, well, it would be so impractical. But someone like John Bolton—who now has both the attention and the ire of the White House—is walking a fine line between the “this is how it has always been done” policy and the “this is what the piece of paper says we can sue you for” law. 

And, of course, the purpose of this whole thing is to prevent the unauthorized disclosure of classified material to third parties. Violating that law obviously has criminal penalties—big ones. If our hypothetical employee’s lawyer sent the NSC for prepublication review a manuscript that the NSC then determined to contain classified information, the employee could be sued for breach of contract for sending it to his or her lawyer without prepublication review and prosecuted for disclosing classified information to the lawyer. And remember, it’s almost exclusively the White House that gets to determine whether the information is classified in the first place. 

Squaring Off in Georgia

A few weeks back, we wrote about Georgia Gov. Brian Kemp’s appointment of Kelly Loeffler to the Senate seat Johnny Isakson’s retirement left vacant. At the time, Kemp split from the White House in choosing Loeffler—CEO of a Bitcoin exchange and longtime Republican donor—over Rep. Doug Collins, a reliable Trump ally in the House who became an attack dog for the president throughout the impeachment inquiry.

But Loeffler has quickly won over Trump since she was sworn in during the throes of impeachment on January 6. Just a few days after assuming office, she became one of 26 Republican senators to sign on to Sen. Lindsey Graham’s resolution condemning Nancy Pelosi’s handling of the impeachment articles. This week, she went viral for accusing Sen. Mitt Romney—whose Restore Our Future Super PAC she donated a quarter of a million dollars to in 2012—of wanting “to appease the left” by calling witnesses like John Bolton “who will slander the @realDonaldTrump during their 15 minutes of fame.”

At the White House’s USMCA signing ceremony on Wednesday, President Trump rewarded Loeffler’s loyalty with a shoutout: “Really great. They already like you a lot. That’s what the word is.”

Despite the new Republican establishment lining up behind Loeffler, Rep. Doug Collins went ahead launched a primary challenge anyway, writing that he has for months “given serious deliberation to the role [he] should serve that would best benefit GA, the country and @realDonaldTrump.”

The blowback was ruthless, and it was immediate. “The shortsightedness in this decision is stunning,” the National Republican Senatorial Committee (NRSC) wrote in a statement issued just before 8am. “Doug Collins’ selfishness will hurt David Perdue, Kelly Loeffler, and President Trump. Not to mention the people of Georgia who stand to bear the burden of it for years to come. All he has done is put two senate seats, multiple house seats, and Georgia’s 16 electoral votes in play. The NRSC stands firmly behind Sen. Kelly Loeffler and urges anyone who wants to re-elect President Trump, hold the GOP senate majority, and stop socialism to do the same.”

“This sucks,” former Mitch McConnell chief of staff Josh Holmes wrote. “I really liked Doug Collins.”

“This won’t end well for the Georgia GOP and will cause serious fractures,” conservative radio host Erick Erickson said of Collins’ decision. “It is a mistake.”

Collins, for his part, is attempting to craft an “outsider” narrative. “Don’t be ridiculous,” he shot back at the NRSC. “This is FAKE NEWS coming from the head of a Washington-based group whose bylaws require him to support all incumbents, even unelected ones.”

“There’s no reason Georgia Republicans shouldn’t be able to pick their own Senate nominee,” Collins added.

Collins conducted an internal poll in mid-December that found he held a 32 percent to 11 percent lead over Loeffler. An Atlanta Journal-Constitution poll from mid-January illustrated the ground Loeffler has to make up: Her +2.7 percent net favorability paled in comparison to Collins’ +16.2 percent.

Georgia holds what’s colloquially referred to as a “jungle primary,” in which all candidates for a given office—regardless of party—face off on election day, with the top two performers moving on to a runoff if neither receives more than 50 percent of the vote. A handful of state representatives in Georgia, upset with Kemp’s appointment of Loeffler, are attempting to institute a strictly Republican primary on May 19, but the governor’s team made clear any such legislation would be met with an immediate veto. 

“You don’t change the rules at halftime to benefit one team over another,” Candice Broce, Gov. Kemp’s spokeswoman, said.

Worth Your Time

• Holocaust survivor Werner Reich gave a TED Talk recently on how magic and kindness got him through the darkest of times. “If you ever know somebody who needs help, if you know somebody who is scared, be kind to them,” he says. “If you do it at the right time, it will enter their heart, and it will be with them wherever they go, forever.”

• D.C. is at its most polarized in perhaps decades—and we’re not talking about impeachment. The city has been flooded with electric scooters in recent years, and they are completely reshaping transportation in the city. One of your Morning Dispatchers owns one of his own and rides it to work every day; another one would just as soon smash them all with his car. Jonathan Littman has a great piece for Marker on the phenomenon, and what’s at stake. “As with any paradigm shift, there are skeptics on one side and true believers on the other. This is a fight with dramatic consequences for our cities. When and how micromobility ultimately morphs into a stable marketplace in the near future is an open question.”

• We here at The Dispatch are of course excited for J.Lo and Shakira’s upcoming Super Bowl halftime show, but nothing will ever compare to Prince’s in February 2007. Alan Siegel put together a great oral history of Prince’s Super Bowl XLI performance for The Ringer. “You could tell he was very happy with his performance. I was like, ‘You made history.’ And he was like, ‘I always make history.’” [Editor’s note: Some of us here at The Dispatch are not excited at all about J. Lo and Shakira’s half time show and care only about the game.]

Presented Without Comment

Something Fun

The Unicode Consortium announced 117 new emojis that will be released later this year. There are some good ones—from bubble tea to roller skates to a woolly mammoth—but this one is by far our favorite:

Toeing the Company Line

• In a jam-packed episode of The Dispatch Podcast, Sarah and the gang dive into the witness dispute at the heart of the impeachment trial before turning to the administration’s Israeli-Palestinian peace plan, the U.K. and Huawei, Trump’s impact on the pro-life movement, and predictions for both the Iowa caucuses and the Super Bowl. Be sure to subscribe here!

• If you liked our look at the U.K.’s Huawei decision yesterday, Thomas Joscelyn’s latest Vital Interests newsletter goes even deeper on 5G, security, and China’s endgame. Give it a read here, and be sure to subscribe to get it in your inbox every Wednesday.

Let Us Know

That new “pinched fingers” emoji is going to prove incredibly helpful once it hits our phones later this year. Which of the below do you view as its proper use?

• Fingers rubbing together, hinting at the significance of cold hard cash

• Accompanying a “mamma mia” or other reductive Italian phrase

• Flipped upside down, sprinkling just a dash of salt

• Surely some news outlet could misconstrue it for a hate symbol, right?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Sarah Isgur (@whignewtons), and Steve Hayes (@stephenfhayes).

*Disclosure: Sarah Isgur, staff writer at The Dispatch, was formerly employed by the law firm Cooper & Kirk LLC.