Bolton's new Book (1 Viewer)

[TaylorB]

By Taylor Bassett - Staff Writer | @bassett_taylor | MadAboutPolitics.com

Yesterday, the DOJ filed a civil lawsuit seeking an injunction to prevent former Trump National Security Advisor John Bolton from releasing his tell-all book, The Room Where It Happened (my apologies to Lin-Manuel Miranda for even typing that title out). Here is the lawsuit:




The crux of the DOJ's complaint is that by distributing the book now, Bolton is side-stepping a review process by the National Security Council, which was conducting a pre-publication review of the book to protect against disclosure of classified information Bolton possesses as a result of his employment with the government. In addition to the injunction, the lawsuit seeks to have the court declare that Bolton is in violation of agreements he entered into with the government as a condition of his employment.

The Barr-Bolton dispute touches on some interesting issues.

First, unless you've been living under a rock, you'll recall Bolton's connection to the dramatic conclusion to the Trump-Ukraine impeachment saga. During the Senate trial, Bolton expressed willingness to testify to some of the issues raised in the House investigation. There was debate on this board about whether Bolton would specifically connect Trump's withholding of aid to investigations helpful to his re-election:

The Impeachment Process Has Officially Begun

By Laura BassettAfter months of internal arguing among Democrats over whether to impeach President Donald Trump, the dam is finally breaking in favor of trying to remove him from office. The Washington Post reported that House Speaker Nancy Pelosi would announce a formal impeachment inquiry...

madaboutpolitics.com

Bolton's book is expected to shed light on information related to the Trump-Ukraine scandal, which is potentially damaging to Trump and the Senate Republicans who voted against calling witnesses in the trial, including Bolton.

Bolton's book is also expected to touch on Trump's relationship with Turkey's Recep Erdogan:

Trump helping Erdogan / Turkey via Barr

This Trump-Turkey story won’t go away. The 2nd tweet in the thread has a crazy quote from the CNN article:There’s something strange going on with Trump and Erdogan. Back in December of 2018, Trump suddenly unilaterally announces our plans for an immediate withdrawal from Syria after a phone...

madaboutpolitics.com

As noted in the twitter thread in my linked post, Bill Barr has tried to use the DOJ to prevent prosecutors from the Southern District of New York from indicting the Turkish Halkbank, which according to Bolton's book, was part of a personal favor from Trump to Erdogan. And as I noted in my prior post, Trump's efforts with Erdogan bring to mind the United States' sudden withdrawal from our position alongside the Kurds in Syria after a Trump-Erdogan phone call. We don't yet fully understand what is behind this Trump-Erdogan courtship, but we do know from the recently revealed Roger Stone search warrants that there's been an investigation into Turkey's involvement in Trump's 2016 election; we also know that Trump has properties in Istanbul, and that Trump's national security transition officials Michael Flynn and Bijan Kian were secretly lobbying on behalf of Turkey during the election.

Bolton's perspective on Trump's opaque foreign policy maneuvers is certain to raise even more questions about what motivates Trump. Reportedly, Bolton's book claims that Trump's decisions are strictly motivated by his reelection chances:

Bolton rips Trump: ‘Getting reelected was the only thing that mattered’

The former national security adviser also argues in a new memoir that Trump took a series of actions that might warrant impeachment.

www.politico.com

This could gain increased significance as we approach November 2020, especially if we see the Trump administration making foreign policy decisions favoring the countries alleged to have offered election assistance in 2016, including Russia, UAE, Saudi Arabia, Israel, and Turkey. Or if we see favorable policies directed at the countries who we believe support his reelection in 2020, which reportedly includes China, and almost certainly includes the aforementioned countries. Is our foreign policy being "sold" to help increase Trump's reelection chances? That is, after all, what impeachment was about: Trump withholding aid to Ukraine, an ally, to the benefit of Russia, an enemy, to improve his reelection odds. If the thesis of Bolton's book is that Trump's modus operandi is to make foreign policy decisions to benefit himself above anything else, that thesis appears to be corroborated by a great deal of public information.

More broadly, the Barr-Bolton dispute demonstrates the consequences of the damage that Barr and Trump have already done to the rule of law. Anyone who recognizes the ways Bill Barr uses the DOJ as cover to act as Trump's personal attorney is likely to think Barr's lawsuit is simply doing more of the same by claiming the NSC needs "more time" to review Bolton's book for classified information. Trump and his associates have time and again used dubious claims of "executive privilege" and "absolute immunity" to avoid dissemination of information that is politically harmful to him -- why wouldn't they claim Bolton's book risks publishing classified information in order to delay or prevent its release?

To be clear, when a former high-level official wants to disclose potentially sensitive information, especially for strictly personal gain, I expect that most of us want the government to have some input as to the dissemination of any material potentially considered as classified. But we also want to be confident that the government is being honest about the review process, and what it considers to be classified. There is simply no reason for anyone to believe Trump or Barr when it comes to the dissemination of Bolton's book. So Barr's use of the DOJ as nothing more than a political weapon has caused irreparable damage to the institution, and therefore, to the rule of law, because it has lost credibility in the eyes of the American public -- at least, to an increasing majority of us.

My guess is that the next few weeks will resemble prior sagas involving former members of Trump's inner-circle who decide to flip on Trump. The anti-Trump crowd will favor Bolton's credibility over Trump/Barr's, which I believe more likely relate to the general distrust of Trump/Barr versus any particularly favorable views about Bolton. The pro-Trump crowd will favor Trump/Barr's credibility, and will point out the irony of leftists believing Bolton -- someone the left historically despises. And I suspect that a majority of people would agree that Bolton looks slimy for promoting his book instead of speaking up at a crucial moment in history.

It is hard to analyze the Barr suit from a legal standpoint, because at the end of the day, the framing of the case boils down to credibility. If you believe Trump/Barr, then you likely view the DOJ suit against Bolton as an important attempt to protect our national security interests. If you don't believe Trump/Barr and view the suit as a pretext for political cover, then you likely think it's a "prior restraint" in violation of the 1st Amendment.

With all of that in mind, I don't give the DOJ suit much of a chance to stop the Bolton book from coming out, and even if there's a delay, I expect it will be out before the election. I hope it comes out, assuming I am correct that the "classified information" dispute is just another Bill Barr Special. I won't be buying it either way, but I certainly want to know what else Trump and Barr so badly don't want us to know about.

 

[Farb]

You mean to tell me that an administration in power will legally try and stop a book written by a disgruntled employee just before an election? Is that scandalous or pretty common? I have no idea, I just think it might be common practice.

 

[Dragon]

You mean to tell me that an administration in power will legally try and stop a book written by a disgruntled employee just before an election? Is that scandalous or pretty common? I have no idea, I just think it might be common practice.

AFAIK that is totally legal as long as he doesn't disclose classified information. Disgruntled or not he has the same right to freedom of speech as everyone else. But certainly the current administration has proven repeatedly that they really don't care.

 

[TaylorB]

You mean to tell me that an administration in power will legally try and stop a book written by a disgruntled employee just before an election? Is that scandalous or pretty common? I have no idea, I just think it might be common practice.

What I mean to tell you is that (1) because the extent to which Barr has been willing to misuse the DOJ is unprecedented, this particular lawsuit does not deserve any benefit of the doubt, regardless whether such a lawsuit might have been entitled to the benefit of the doubt under prior administrations, and (2) your hypothetical assumes that the reason for the legal action is simply to stop the spread of harmful information, which the First Amendment clearly prohibits.

In other words, if any prior administration did something similar to this, I'm almost certain the lawsuit would raise plausible national security concerns in order to survive in court. And the odds are great that any such concerns would be more believable than the ones raised by Barr in this context, given his pattern of behavior as Attorney General. And if such concerns weren't believable, then the First Amendment would operate to obliterate that bad faith argument, as it should under any administration.

 

[Farb]

What I mean to tell you is that (1) because the extent to which Barr has been willing to misuse the DOJ is unprecedented, this particular lawsuit does not deserve any benefit of the doubt, regardless whether such a lawsuit might have been entitled to the benefit of the doubt under prior administrations, and (2) your hypothetical assumes that the reason for the legal action is simply to stop the spread of harmful information, which the First Amendment clearly prohibits.

In other words, if any prior administration did something similar to this, I'm almost certain the lawsuit would raise plausible national security concerns in order to survive in court. And the odds are great that any such concerns would be more believable than the ones raised by Barr in this context, given his pattern of behavior as Attorney General. And if such concerns weren't believable, then the First Amendment would operate to obliterate that bad faith argument, as it should under any administration.

1. Got it. Barr bad. Any other AG better. No benefit of the doubt for this admin but all other past admins get full benefit of the doubt. Seems reasonable and logical.

2. Why would Trump admin want to legally stop this book from being published just before the election? Do you think it will heap praise on admin and help him speed along to victory in November or is it more likely (although hypothetical as well.....) that it will contain information that more slanted negatively to the current administration?

3. Question still stands, is this something nefarious and evil? Is this how our democracy dies or is this common politics, irregardless of what political party is doing it?

 

[Dragon]

1. Got it. Barr bad. Any other AG better. No benefit of the doubt for this admin but all other past admins get full benefit of the doubt. Seems reasonable and logical.

2. Why would Trump admin want to legally stop this book from being published just before the election? Do you think it will heap praise on admin and help him speed along to victory in November or is it more likely (although hypothetical as well.....) that it will contain information that more slanted negatively to the current administration?

Well the author of the book can write that Trump is ill-tempered, dangerous to this country and lying constantly and STILL be within his constitutional rights. Negatively slant against the current administration is NOT a legal reason to block the book, but a right fully supported by the 1st. amendment ?

3. Question still stands, is this something nefarious and evil? Is this how our democracy dies or is this common politics, irregardless of what political party is doing it?

Your democracy dies if the justice systems and laws are subverted to suppress negative information protected by your constitution by the very powers who swore to uphold and defend the same.

 

[TaylorB]

1. Got it. Barr bad. Any other AG better. No benefit of the doubt for this admin but all other past admins get full benefit of the doubt. Seems reasonable and logical.

I've offered plenty of reason and logic behind my position. It's always easier to make me look unreasonable when you re-frame my arguments without the context. The "benefit of the doubt" I'm referring to is whether the DOJ claims of "classified info" being at risked should be believed. Your own posts suggest that you don't even believe that legal basis, but rather believe they don't want it out because it makes them look bad. That's exactly what I'm saying.

2. Why would Trump admin want to legally stop this book from being published just before the election? Do you think it will heap praise on admin and help him speed along to victory in November or is it more likely (although hypothetical as well.....) that it will contain information that more slanted negatively to the current administration?

I agree with you that the reason they don't want this published is because it makes them look bad. That's not what the DOJ lawsuit says. So again, you illustrate my point when you offer the real reason behind preventing the book's publication, which has nothing to do with the information being classified.

3. Question still stands, is this something nefarious and evil? Is this how our democracy dies or is this common politics, irregardless of what political party is doing it?

I think this administration is uniquely corrupt, and that the people who attribute his behavior to "both sides" -- who, outside of GOP leadership, I mostly believe to be in good faith -- have made a serious miscalculation, and that miscalculation has given this administration wide latitude to do incalculable harm to democratic norms. And I do not think "corruption" is limited to Trump, or Rs, by any means. But there are few better examples of how unique this threat is than Bill Barr's use of the DOJ, or Trump's transactional use of foreign policy to benefit himself.

Those are my viewpoints, since you asked. It is not inherently unreasonable or illogical to disagree with me. I live in a very red state; most people I've ever known in my life are conservative. I get why people want to believe in Trump. I'm just explaining, to the best of my ability, why I don't.

 

[JimEverett]

3. Question still stands, is this something nefarious and evil? Is this how our democracy dies or is this common politics, irregardless of what political party is doing it?

It is not unprecedented. The Bush Administration and Obama Administration tried to criminalize the makers of a film because of its political content (it was critical of candidate Hillary Clinton at a time that was too close to an election) - there was not even an attempt to tie it to potential national security concerns. And th Democratic PArty to this day still supports such moves. There may be other examples as well - in fact, I am sure Administrations have put pressure on publishers to stop publication of something, although I can think of no lawsuits off hand.

I do not like what the Administration is doing here, but I don't think it is a threat to democracy. The threat might come if a court agrees with them or if they seek and pass stronger legislation criminalizing publication - which has been done before.

 

[not2rich]

I had no intention of buying Bolton's book, but this lawsuit may have changed my mind.

 

[GrandAdmiral]

I had no intention of buying Bolton's book, but this lawsuit may have changed my mind.

Amazon is offering it for about 40% off with a pre-order.

 

[superchuck500]

I think it's almost certain that the book's release will be enjoined. There's a strong public policy in favor of protecting the improper release of classified information and there's no way to reverse the harm if material that should have been protected is released.

My guess on how this works out is that Judge Lamberth (who drew the case - he's a long-time DDC judge, former chief judge, Reagan-appointee and known to a bit of a wild card), will temporarily enjoin the book's release and give the government a fairly limited period of time to complete the review. To the extent Bolton objects to the NSC's redactions, the court could conduct an in-camera review.

But who knows, Judge Lamberth could also just rule on the contract issue and determine that it's up to NSC to determine how it conducts these reviews. I imagine, however, that Bolton will argue that the suit is suppressing his first amendment rights and the court will have to balance those claims. The best way to do that is to give NSC a deadline to conduct its review - and then have the court resolve disputes.

It's easily possible, however, that this process could go on for several months. Even if the DDC ultimately clears the way for the book's release, the government will have appeal/writ rights to the DC Circuit and SCOTUS, and any claim that the injunction is required to prevent the disclosure of classified information will likely be favorably received.

 

[GrandAdmiral]

I think it's almost certain that the book's release will be enjoined. There's a strong public policy in favor of protecting the improper release of classified information and there's no way to reverse the harm if material that should have been protected is released.

My guess on how this works out is that Judge Lamberth (who drew the case - he's a long-time DDC judge, former chief judge, Reagan-appointee and known to a bit of a wild card), will temporarily enjoin the book's release and give the government a fairly limited period of time to complete the review. To the extent Bolton objects to the NSC's redactions, the court could conduct an in-camera review.

But who knows, Judge Lamberth could also just rule on the contract issue and determine that it's up to NSC to determine how it conducts these reviews. I imagine, however, that Bolton will argue that the suit is suppressing his first amendment rights and the court will have to balance those claims. The best way to do that is to give NSC a deadline to conduct its review - and then have the court resolve disputes.

It's easily possible, however, that this process could go on for several months. Even if the DDC ultimately clears the way for the book's release, the government will have appeal/writ rights to the DC Circuit and SCOTUS, and any claim that the injunction is required to prevent the disclosure of classified information will likely be favorably received.

I guess my question is how long does it take for the NSC to go through a 500-page book? I know it might involve more than just reading it, but hell, I'd think it showed be pretty damn obvious to point out and redact "The President provided Gen. Kelly with launch code GRY38OH for the nuclear missile silo in Missouri.

Or is it much more complicated than that?

 

[JimEverett]

I think it's almost certain that the book's release will be enjoined. There's a strong public policy in favor of protecting the improper release of classified information and there's no way to reverse the harm if material that should have been protected is released.

My guess on how this works out is that Judge Lamberth (who drew the case - he's a long-time DDC judge, former chief judge, Reagan-appointee and known to a bit of a wild card), will temporarily enjoin the book's release and give the government a fairly limited period of time to complete the review. To the extent Bolton objects to the NSC's redactions, the court could conduct an in-camera review.

But who knows, Judge Lamberth could also just rule on the contract issue and determine that it's up to NSC to determine how it conducts these reviews. I imagine, however, that Bolton will argue that the suit is suppressing his first amendment rights and the court will have to balance those claims. The best way to do that is to give NSC a deadline to conduct its review - and then have the court resolve disputes.

It's easily possible, however, that this process could go on for several months. Even if the DDC ultimately clears the way for the book's release, the government will have appeal/writ rights to the DC Circuit and SCOTUS, and any claim that the injunction is required to prevent the disclosure of classified information will likely be favorably received.

That is interesting. On the issue of national security review, is the main issue that Bolton was an employee (perhaps contractual employee?) that had a clearance? The reason I am asking is that it seems as if Courts would not be able or willing to stop publication of potentially classified information if, say, done by the New York Times.

 

[TaylorB]

I think it's almost certain that the book's release will be enjoined. There's a strong public policy in favor of protecting the improper release of classified information and there's no way to reverse the harm if material that should have been protected is released.

My guess on how this works out is that Judge Lamberth (who drew the case - he's a long-time DDC judge, former chief judge, Reagan-appointee and known to a bit of a wild card), will temporarily enjoin the book's release and give the government a fairly limited period of time to complete the review. To the extent Bolton objects to the NSC's redactions, the court could conduct an in-camera review.

But who knows, Judge Lamberth could also just rule on the contract issue and determine that it's up to NSC to determine how it conducts these reviews. I imagine, however, that Bolton will argue that the suit is suppressing his first amendment rights and the court will have to balance those claims. The best way to do that is to give NSC a deadline to conduct its review - and then have the court resolve disputes.

It's easily possible, however, that this process could go on for several months. Even if the DDC ultimately clears the way for the book's release, the government will have appeal/writ rights to the DC Circuit and SCOTUS, and any claim that the injunction is required to prevent the disclosure of classified information will likely be favorably received.

This is informative to me, as my post was admittedly light on legal analysis. I had understood that the Bolton books were already in the hands of the distributors and waiting to go out on the release date, so the DOJ was essentially asking the Courts to put the toothpaste back in the tube with the classified materials. And I thought that a possible remedy would Bolton losing the profits if he were in violation of his employment contracts. But the scenarios you described seem reasonably possible, too.

 

[insidejob]

1. Got it. Barr bad. Any other AG better. No benefit of the doubt for this admin but all other past admins get full benefit of the doubt. Seems reasonable and logical.

Dude, come one. He got the job because he wrote an unsolicited op-ed piece that was like 20 pages long trashing the Mueller investigation and has done any and everything to further Trump's ideas while acting as his defense attorney. I know you aren't dumb, so you have to see the problem here.

 

[superchuck500]

That is interesting. On the issue of national security review, is the main issue that Bolton was an employee (perhaps contractual employee?) that had a clearance? The reason I am asking is that it seems as if Courts would not be able or willing to stop publication of potentially classified information if, say, done by the New York Times.

I think the argument DOJ makes is that, as NSA, Bolton signed the standard forms regarding access to classified or compartmentalized information and, in doing so, agreed to be bound by NSC's review policy for publication. I get the point you're making about a publisher versus a source, and you might be right that the publisher isn't bound by the author's agreements. I think DOJ tries to include the publisher within the injunctive request by requiring Bolton to "instruct" the publisher not to publish.

Not sure how viable that is.

 

[superchuck500]

This is informative to me, as my post was admittedly light on legal analysis. I had understood that the Bolton books were already in the hands of the distributors and waiting to go out on the release date, so the DOJ was essentially asking the Courts to put the toothpaste back in the tube with the classified materials. And I thought that a possible remedy would Bolton losing the profits if he were in violation of his employment contracts. But the scenarios you described seem reasonably possible, too.

Yeah, I think that's basically what Jim is also saying - is the publisher within the reach of this action? Th publisher isn't even a defendant. I suppose the agreement Bolton signed with the publisher would be instructive on the degree of control Bolton has with respect to the book's release.

Regarding damages or Bolton's exposure, I'm not sure how that would work. The US isn't seeking damages and if Bolton has been paid a flat fee for the manuscript, he's already been paid and I don't see how the allegations would render that void or something. I wonder if these declarations (if granted) potentially set up criminal or civil sanctions under the rules governing classified material?

 

[TaylorB]

Yeah, I think that's basically what Jim is also saying - is the publisher within the reach of this action? Th publisher isn't even a defendant. I suppose the agreement Bolton signed with the publisher would be instructive on the degree of control Bolton has with respect to the book's release.

If you look at the relief prayed for at the end of the lawsuit, the DOJ seeks to have the Court notify the publishers of the restraining order it seeks against Bolton pursuant to Federal Rule of Civil Procedure 65(d)(2) which binds officers, agents, etc. So if the restraining order is simply based on Bolton's violation of the NDA, then the Court could potentially bind the publishers as well. And the publishers are listed by name in the lawsuit as parties to be notified.

Just as I'm typing this, all hell has broken loose on Twitter as major media appears to be reporting on the book extensively. So the toothpaste has apparently left the tube.