DOJ Says Bolton Book Isn't Speech, It's, Uhhhh, *Stolen Goods*
In Bill Barr's Justice Department, things can always get stupider. And last night, when the government asked the court to issue a temporary restraining order (TRO) and/or a preliminary injunction (PI) to block publication of John Bolton's book ... things did. As if a legal motion can memory hole all those salacious details we read yesterday about the traitorous piece of shit squatting in the Oval Office, and how everyone on his staff calls him a drooling dipshit behind his back. Every reporter in DC already has a copy of the book, but if US District Judge Royce Lamberth will just agree to wave his magic gavel, they'll all disappear in a puff of acrid smoke. POOF!
And if this case offends basic logic, it kicks legal precedent squarely in the jimmies. Since 1971, when the Supreme Court refused to stop the New York Times from publishing the Pentagon Papers, it has been axiomatic that the First Amendment permits no "prior restraint" on speech. Which means that government employees can be prosecuted for leaking classified information, but courts will not stop the media from printing it.
Seems pretty clear that the government can't stop Simon & Schuster from selling Bolton's book next week, right? Well! Would you buy the argument that the government isn't trying to censor speech, they're trying to stop the sale of contraband books, which are just like stolen goods? Because Bill Barr is willing to say with a straight face that the government can force Simon & Schuster to pulp Bolton's manuscript — without going to the trouble of suing the company itself — because S & S is the same a guy selling pirated Kid Rock CDs out of the trunk of his car.
No? Okay, how about this one. Courts have consistently ruled that the non-disclosure agreements federal employees sign when they receive security clearance to view classified material do not violate the First Amendment's free speech guarantee. What if a court ordering Bolton to STFU and pulp his book isn't a prior restraint on speech, it's just a continuation of the pre-publication review process? Of course that would make the judiciary a functional organ of the executive branch, but whatever! Separation of Powers is, like, not really a thing. Well, unless it's the legislative branch trying to do oversight of the president, in which case it's an UNLEGAL CAPITAL OFFENSE.
If those arguments seem like horseshit, it's because they are. Clearly, the government is seeking an illegal prior restraint on Bolton's speech based on entirely specious legal grounds. And frankly the restraint isn't all that "prior" anyway. To get an emergency injunction, the DOJ must prove both that it's likely to win on the merits and that delay would cause it irreparable harm. Which ... NO to the first, and as to the second, that ship has sailed! Whatever classified information is in Bolton's book has already made its way out into the world, and no court order can change that. The books have been printed and shipped to distributors, and every major news outlet in the country got an advance copy.
Stephen Colbert mocks A.G. Barr, reveals he already has Bolton’s book DOJ is suing to stop https://t.co/T3KY64IMmy https://t.co/cbs8uowxhm— Yahoo Entertainment (@Yahoo Entertainment)1592404086.0
Which is exactly what Simon & Schuster said, in a statement released last night telling Barr et al. to go pound sand: "Tonight's filing by the government is a frivolous, politically motivated exercise in futility. Hundreds of thousands of copies of John Bolton's 'The Room Where It Happened' have already been distributed around the country and the world. The injunction as requested by the government would accomplish nothing."
That doesn't mean Bolton's out of the woods, though. He probably did breach his non-disclosure agreement promising to submit anything he wrote about the government for classification review. This isn't one of those bullshit NDAs Trump tried to import from the campaign to stop anyone saying mean shit about the Trump family — we're talking about a legally enforceable contract to protect legitimately classified secrets that every clearance holder signs. So Bolton may well be forced to hand the proceeds from his book over to Uncle Sam, as have other federal employees who failed to submit to pre-publication classification review. Most recently, Matt Bissonnette, the Navy SEAL who bypassed review and pseudonymously published an account of the raid that killed Osama bin Laden, was forced to write a $6.8 million check to the government.
But if Bolton did breach his contract, that breach already happened when he wrote the manuscript and shared it with his publishers. Putting the book on sale might disseminate the embarrassing details more widely, but the DOJ's warning that Bolton's book is full of classified material and "unauthorized disclosure of this information could reasonably be expected to enable foreign threat actors to cause serious, and sometimes grave, damage to our national and economic security" is nonsense on its face. When half of DC has a copy of the book, Boris and Natasha don't have to wait in line at Barnes and Noble to find out what's in it. The damage is already done, and no injunction can undo it.
So why is the government going to the trouble of filing this POS brief? Because, as the Washington Post reports, Trump "urged aides Wednesday to seek to block the publication of the book, despite warnings that the prospects of victory in such a suit would not be strong." Bill Barr knows this is garbage, but he doesn't care about the law, or propriety, or wasting government resources. He thinks he runs the world's biggest law firm, and it only has one client: a scream-tweeting, race-baiting, orange-haired ignoramus who doesn't give a shit about Americans or the rule of law.
And if we don't get our shit together on November 3, HE'LL BE RIGHT.
Follow Liz Dye on Twitter RIGHT HERE!
Please click here to support your Wonkette. And if you're ordering your quarantine goods on Amazon, this is the link to do it.
Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.