First Amendment

A Quick Analysis of Bolton’s Response to the Government’s Emergency Request for Prior Restraint

By Jack Goldsmith, Marty Lederman
Friday, June 19, 2020, 11:37 AM

Late last night, John Bolton filed his brief in opposition to the government’s motion for a temporary restraining order or preliminary injunction. Judge Lamberth will have a hearing on the government’s motion today at 1:00.

Bolton’s brief carefully describes the facts of the case, and offers several legal arguments in opposition to the government’s motion. Included among the arguments in Bolton’s brief are those we’ve emphasized in our two earlier posts concerning whether it’s fair to read Bolton’s nondisclosure agreements with the government to prohibit him from publishing his new memoir, The Room Where it Happens.

These are some of the more important aspects of Bolton’s brief and the attached declarations and exhibits:

1. Most importantly, perhaps, the brief and the attached declarations demonstrate that an injunction against Bolton now would be futile (and therefore the government presumably cannot demonstrate any irreparable harm). Bolton asserts, and Simon & Schuster’s CEO confirms, that “[o]nce Simon & Schuster formally accepted the manuscript for publication [from Bolton in early May], and initiated the publication process, Ambassador Bolton lost any authority/ability he otherwise may have had to prevent or delay the Book’s publication.” Moreover, even if Rule 65(d)(2) would extend the injunction to Simon & Schuster (which Bolton disputes), the publisher’s CEO explains: “Simon & Schuster no longer maintains control of the [more than 200,000] copies of the Book that have been shipped to . . . large national chains, online retailers, and small independent booksellers . . . . Once Simon & Schuster shipped them in response to a purchase order, title to the physical copies passed to the retailer or wholesaler.” And “certain online retailers have already shipped preordered copies of the Book to some of their customers.” The toothpaste, in other words, cannot be put back in the tube. This ought to preclude any injunction, irrespective of whether the government can obtain a constructive trust for Bolton’s profits.

2. Pages 9-17 of the brief describe in great detail the extensive and meticulous “iterative” prepublication review process in which Bolton participated with Ellen Knight, the National Security Council’s (NSC) senior director for records, access, and information security management, and a member of her staff. Exhibits O and P, in particular, are worth examining in order to get a flavor of the sort of particularized, page-by-page, line-by-line back-and-forth that Bolton and Knight had over the course of several months. (Exhibit O contains Bolton’s notes from his meetings with Knight. Exhibit P is Knight’s 17-page, single-spaced memo to Bolton dated March 27, setting forth the hundreds of changes she proposed during that particular phase of their negotiations.)

3. Exhibits O and P confirm that most of the negotiations between Bolton and Knight involved passages in the manuscript describing President Trump’s communications with foreign leaders and others. Many of the changes proposed by Knight were simply to replace direct quotations with paraphrases. (In the epilogue of his book, Bolton tells his readers that “[i]n some cases, just put your own quotation marks around the relevant passages; you won’t go far wrong.”) We can’t say for certain, but this certainly suggests that Knight’s principal concern was not with the substance of any characterizations in Bolton’s book, but instead with the possibility that the use of direct quotations—offered by a former National Security Advisor—might suggest that the quotations were gleaned from recordings or transcripts of interceptions, which would in turn “reveal” U.S. signals intelligence (SIGINT) capabilities. It remains to be seen whether and how the revelations in Bolton’s book might harm national security—something Judge Lamberth might examine if he convenes a classified hearing.

4. Bolton’s declaration reveals that when the government delivered to Bolton its new proposed redactions just this past Tuesday (June 16), those new “extensive and sweeping” proposed redactions would “eliminat[e] passages describing or recounting a significant majority of the President’s conversations with his advisors and with foreign leaders,” as well as “numerous passages portraying President Trump in an unflattering light.” The public filings in the case don’t include the government’s explanations of who purportedly designated those passages as classified, when that designation was made, and on what basis, although presumably that information is included in Michael Ellis’s classified declaration.

5. As we’ve described in greater detail in our earlier posts, one of the government’s two principal arguments is that Bolton is contractually obligated, by virtue of the SF-4414 agreements he signed, not to publish the book until he obtains written authorization from the NSC to do so. Bolton argues, consistently with our previous analysis, that that obligation is only triggered if the manuscript in question contains information classified as “Sensitive Compartmentalized Information” (SCI) or information “related to” or “derived from” SCI.

Bolton asserts that the book doesn’t contain any such information. As we noted yesterday, however, in its TRO motion the Government asserted for the first time that the book does contain SCI (which would in turn trigger the requirement that Bolton not publish the book until he receives written NSC authorization). (As Bolton’s brief puts it: "For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.”) In his declaration, Bolton attests:

At no point in the prepublication process did Ms. Knight, or anyone else at the NSC, suggest that any version of the manuscript contained Sensitive Compartmentalized Information. Prior to her approval of the manuscript on April 27, in both her written and oral communications with me, her sole concern was her view that earlier versions of the manuscript contained information classified at the Confidential, Secret, and Top Secret levels. Likewise, Mr. Eisenberg’s letters of June 8 and June 10 and Mr. Ellis’s letter of June 16 did not suggest that my book revealed SCI, nor did the complaint filed by the Government. The first time anyone ever suggested such a possibility was [this Wednesday, in the TRO motion].

Accordingly, as we stressed yesterday, Judge Lamberth might try to ascertain whether the book does contain SCI and, if so, how and when it was classified as SCI and why no one at NSC thought to mention that fact until two days ago.

6. The government’s other principal argument is simply that the book contains non-SCI classified information and that Bolton promised in another nondisclosure agreement (Standard Form 312) that he would “never divulge” any classified information to anyone not authorized to see it. Bolton emphasizes that he’s never thought the manuscript contains classified information (a claim that informs any duties he had to seek government review of this information). And in any event, he says he only cleared Simon & Schuster to publish the book after Ellen Knight told him, on April 27, that the manuscript no longer contained any information that she thought was classified.

Bolton’s brief suggests—even if it doesn’t quite argue directly—another reason he might not have violated his SF-312 nondisclosure obligation. As we explained in our post yesterday, it appears that much and perhaps all of the information that the government now claims is classified was only classified—probably by Michael Ellis—after May 2 (when Ellis began his review of the manuscript). To the extent that’s true (a question Judge Lamberth should examine), it may mean that Bolton did not “divulge” information to anyone that was classified when he divulged it. (We don’t know when Bolton submitted his manuscript to Simon & Schuster.) And if that’s the case, then he didn’t violate the obligation in his SF-312 not to divulge classified information.

Bolton makes a version of this argument at the end of his brief, characterizing Ellis’s post-April additional review of the manuscript as a violation of “the covenant of good faith and fair dealing that is implied in all contracts, including Government contracts.” Bolton focuses, however, on alleged impermissible motives for the Ellis review. A more basic point is that to the extent the information was only classified after Bolton divulged it, he hasn’t violated the plain terms of his SF-312 nondisclosure obligation.