Bolton’s Legal Victory Was Actually a Setback for Free Speech
The government actually won a lot from its request.
|Jack Goldsmith||Jun 23, 2020||28||6|
Last week the Trump Justice Department tried and failed to prevent former National Security Adviser John Bolton from publishing his new book, The Room Where It Happened. The book is out today, thanks to a ruling over the weekend by Federal District Court Judge Royce Lamberth. Lamberth rejected the department’s broad request to halt publication. His order seemed on the surface like a victory for freedom of speech but was actually a setback. And for Bolton, the order was calamitous.
The government had asked Lambert to order Bolton to halt publication of the book because it contained classified information in violation of contracts Bolton signed while in government. It also asked Lamberth to order Bolton’s publisher, Simon & Schuster “to retrieve and destroy any copies of the book that may be in the possession of any third party,” and for the order against publication to extend to everyone else “in the commercial distribution chain” of Bolton’s book, including Amazon, Audible, and your local bookstore.
Few outside the government thought this gambit would succeed. Prior restraints on publication of this sort are strongly disfavored under the First Amendment. And in any event Lamberth lacked the power to prevent the government’s injury—the revelation of the secrets in Bolton’s book to adversaries—because the damaging information was already out. By the time the government brought its lawsuit, Simon and Shuster had already distributed hundreds of thousands of copies around the globe. A few hours after the filing, several reviews of the book, and an excerpt by Bolton, appeared in newspapers. “The surreal nature of the Government’s request to enjoin publication and distribution of the book was driven home,” Bolton’s lawyers noted, “when a CBS News reporter, holding a copy of the book in her hand, questioned the President’s press secretary about passages in the book on the White House lawn.”
The government’s request for an injunction was such an obvious loser that it was puzzling why it was filed. The New York Times reported that some government lawyers feared that any attempt to block the book’s distribution “was doomed to fail and would make the government look inept.” The Times suggested that the department might have caved to President Trump’s pressure, as it had seemed to do in the past. “Especially in light of the pointlessness of the request for an injunction, it’s natural to view it as just the department carrying Trump’s water,” I speculated in the piece.
The conventional wisdom proved right on one level. Lamberth ruled that he lacked power to redress the government’s injuries since the book had already been widely disseminated. The “damage is done” and “there is no restoring the status quo,” he explained. He added that for “reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir.”
Lamberth might have stopped there, since this logic resolved the motion before him. But he did not stop there. He went on to address whether the government was likely to win the broader breach of contract case on the merits, which would enable it to recover Bolton’s royalties. And what more he said showed that I and many others were quite wrong to suggest that the government’s request for an injunction was pointless. The government actually won a lot from its request.
Its underlying beef with Bolton was that he had violated his contracts not just by publishing classified information, but also by failing to complete the government’s “prepublication review” process so that the government could assess whether the manuscript contained such information. Bolton maintained that he had satisfied his contractual duties because, after four months of intensive government vetting, Ellen Knight, the career National Security Council official in charge of prepublication review, told him that the manuscript contained no classified information. The government countered that the prepublication process was not over, and that the book did in fact contain classified information.
This dispute turns on technical though ambiguous contract terms, and some questions about the integrity of the prepublication review process. After Knight told Bolton that the manuscript contained no classified information, the NSC’s newly installed senior director for intelligence, Michael Ellis, a political appointee, did his own review and reached the opposite conclusion. The problem was that Ellis, a neophyte in classification authority, received his mandatory training “in proper classification (including avoidance of overclassification)” the day after he determined that Bolton’s book contained classified information. And while the government filed affidavits from senior intelligence officials that the manuscript did in fact contain classified information, there was reason to think that at least some of this information was classified after Knight told Bolton that his manuscript contained none.
These contested issues should be sorted out fully as the lawsuit proceeds and the parties present their cases in full. But Judge Lamberth, who was clearly annoyed that Bolton rushed to publish his book, strongly tipped his hand even though he had no need to. After hearing from the government in secret, he stated that he was “persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations.” He added that “Bolton has gambled with the national security of the United States” and “exposed his country to harm and himself to civil (and potentially criminal) liability.”
This is a disastrous dictum for Bolton. No matter what evidence and arguments Bolton’s lawyers marshal in the coming weeks and months, Lamberth is unlikely to change his mind. That means that Lamberth will almost certainly rule that the government can collect Bolton’s royalties. Lamberth also practically invited the government to prosecute Bolton. A criminal case will be hard for the government to win, and before Lamberth’s order would have been very controversial. But now the government has powerful cover to give it a shot.
The ruling is also bad for freedom of speech related to national security. The government has an obvious need to keep a lid on important national security secrets, and prepublication review often prevents genuine national security harms. But there are big problems with the current system. The government has wide and practically unreviewable discretion to deem facts “classified” based on a discretionary judgment about their “damage” to national security if disclosed. Classification is often opportunistic and overclassification is rife. The government is not supposed to classify information to “prevent embarrassment,” but in practice it can and does. The system is widely seen by those who experience it as characterized by “extreme arbitrariness,” which is how former CIA Director Stansfield Turner viewed the review of one of his books.
Moreover, as Bolton’s case demonstrates, and as I can attest from personal experience, it is often unclear what must be precleared prior to publication, and the reviewers can stretch out the process indefinitely, long after they are supposed to resolve the matter, without reasons. However inaccurate or corrupt or delayed a censorship decision may be, the author has little choice but to play chicken with the government, as Bolton did; or succumb to the censors, which usually happens; or simply to not write in the first place, which happens a lot. Some former officials win the game of chicken when they proceed to publication before the government’s review is complete and the government for various reasons does not subsequently sue. Former CIA Director Leon Panetta did this, without legal consequence. So did I, once. Bolton made a similar bet and, at least for now, he lost.
Which brings me back to Lamberth’s order. There are many proposals to maintain vital national security secrets with a less capricious and less manipulable prepublication review process. The government has little incentive to adopt these proposals. The Bolton case presented an opportunity for an experienced judge, assisted by highly qualified advocates, to examine and test the legitimacy of prepublication review. This can still conceivably happen despite Lamberth’s rash thoughts about the merits of the case, but probably won’t. Perhaps Bolton’s inevitable appeal will force closer scrutiny. But in the meantime, Lamberth’s high profile, premature endorsement of the prepublication process without a careful examination of the relevant contracts or how the process worked in practice will embolden government’s shenanigans.
This is bad news for government employees who wish to speak out on important issues of public interest gleaned during their time in government but who will now be more chilled than ever, often unjustifiably, from doing so. And “even more important, [it is] unfair to the public, which is denied timely access to voices that often have unique insight or knowledge about the operations of government,” as Jameel Jaffer of Knight First Amendment Institute put it. Many people see Bolton as an unsympathetic character. But there are larger issues at stake.
Jack Goldsmith is Henry L. Shattuck professor of law at Harvard University and a senior fellow at the Hoover Institution at Stanford University.
Photograph by Logan Cyrus/AFP/Getty Images.