Trump Sues John Bolton Over Upcoming Tell-All, And Yes, THEY CAN BOTH LOSE
If Donald Trump filed 1,000 lawsuits, he still couldn't redeem John Bolton's legacy. But he's giving it the old Trump try!
Yesterday, the Justice Department made good on its threat and filed suit against John Bolton to stop him from publishing his tell-all book In the Room Where It Happened (Wonkette cut link, only if you're buying it anyway) about his time as Trump's national security advisor. The president has said that he views Bolton as a traitor and wants the book shitcanned on some cockamamie theory that "every conversation with me, as president [is] highly classified." Which is not how any of this works. Bill Barr, who is a fascist but not a drooling idiot, knows that he can't very well sue Bolton and his publisher Simon & Schuster and demand that they not publish classified information, because that would violate the First Amendment.
So instead the DOJ is suing under contract law, seeking to enforce Bolton's non-disclosure agreement with the government, and threatening to seize all the profits from the book if Bolton himself doesn't force S & S to pulp it. And in case anyone missed the deliberate malice here, he made the decision not to redact Bolton's home address in the filing. Nice, huh?
Okay, let's lawsplain this thing!
In 1971, the Supreme Court ruled that the Nixon administration couldn't stop the New York Times from publishing the Pentagon Papers, a classified critique of our Vietnam policy, because that would be a prior restraint on speech in violation of the First Amendment. Barr knows he's not going to get a federal court to issue an injunction ordering S & S not to publish, so instead he's suing Bolton for violating his employment contract, in which he agreed not to divulge classified information and to submit any future books about his time in government to a pre-publication review for classified material.
Because the Trump administration began with an NDA dispute between Donald Trump, AKA David Dennison, and Stormy Daniels, AKA Peggy Peterson, and it's going to end with one between Ambassador Mustache Ride and what's left of the Justice Department. It's all so fucking tawdry.
In the filing, the government acknowledges that Bolton went through months of revisions with Ellen Knight, the National Security Council's senior director for prepublication review, who told Bolton on April 27 that she thought the manuscript contained no further classified information. But then it it got kicked up to the White House and landed on the lap of Michael Ellis, Devin Nunes's former aide who got himself promoted to senior director of the NSC.
Remember that time Devin Nunes got caught laundering leaked information on the Russia investigation from the White House? That was Ellis. Remember that other time when the transcript of Trump's perfect, perfect extortion call with the president of Ukraine got stashed on the top secret bin Laden server to keep it away from prying eyes? Also Ellis. Michael Ellis is the last guy on earth you'd trust to make a non-political classification decision, and, true to form, he appears to have sat on the manuscript and made no move until Bolton forced his hand by announcing that he intended to go to press on June 23, with or without the NSC's signature on his permission slip.
At which point John Eisenberg, the White House lawyer who's up to his eyeballs in the Ukraine scandal, including locking the transcript away, burying the whistleblower complaint, and refusing to testify to the House Impeachment inquiry, sent Bolton a histrionic letter accusing him of selling classified information "to the highest bidder ... without regard for the harm it would cause to the national security of the United States." Which is BIG TALK from a guy who participated in a scheme to withhold congressionally allocated defense funds to an allied nation fighting off a Russian invasion until that country ponied up a bogus investigation into the president's political rival. But we digress!
This lawsuit doesn't explicitly ask for an injunction on publication of Bolton's book, which will 100 percent contain incriminating details about Ellis, Eisenberg, Barr and everyone else in Trumpland. Instead it alleges that he breached his contract with the United States and seeks to seize all his profits if he doesn't immediately order S & S to repo all the bound and printed copies already out for distribution. The government's not asking the court to enjoin publication, they're asking the court to make Bolton himself pull the book. Which is a pretty fine distinction.
Enter an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened because he has not completed prepublication review and because it contains classified information; to instruct or request his publisher, insofar as he has the authority to do so, to further delay the release date of The Room Where it Happened until completion of the prepublication review process; and to instruct or request his publisher, insofar as he has the authority to do so, to take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party in a manner acceptable to the United States
The suit also implicitly threatens criminal prosecution, since disclosure of classified information is a violation of the Espionage Act.
NSC has determined that the manuscript in its present form contains certain passages—some up to several paragraphs in length—that contain classified national security information. In fact, the NSC has determined that information in the manuscript is classified at the Confidential, Secret, and Top Secret levels. Accordingly, the publication and release of The Room Where it Happened would cause irreparable harm, because the disclosure of instances of classified information in the manuscript reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.
Just yesterday, Trump was babbling about doing LOCK HER UPS to Bolton like a common Hilary Clinton, telling reporters, "You're not talking about, like, he's got to return three dollars that he made on a book. That's called criminal liability. That's a big thing. You know, Hillary Clinton, she deleted 33,000 emails. And if we ever found out what those emails say, she would've had a liability." Which is hilarious because the DOJ's brief makes about six references to John Judas Bolton's $2 million book advance. And also, Hillary Clinton is paying zero dollars despite living rent-free in Trump's head for four straight years.
But for now the government is just seeking a "constructive trust" for Bolton's "three dollars," AKA "all royalties, remunerations, and emoluments that have resulted, or will result from any disclosure, publication, or revelation of classified information contained in The Room Where It Happened that is not consistent with the terms of the NDA have been assigned to the United States Government." And unless the DOJ comes back and seeks an injunction on publication or a temporary restraining order, Bolton doesn't have to respond for 21 days, at which point, the whole thing will be moot since the book is coming out on Tuesday. So what we're really talking about here is money.
According to Brad Moss and Mark Zaid, the kings of NatSec Twitter who have shepherded dozens of clients through the pre-publication review process, Bolton can go to press, but he's virtually guaranteed to forfeit the proceeds of the book to Uncle Sam.
Given #Bolton is about to likely lose all his profits, why he didn't step up and help the country by providing info… https://t.co/5zCCCLOl2n— Mark S. Zaid (@Mark S. Zaid)1592344732.0
This is going to be a pretty open and shut case against Bolton. Straight civil breach of contract and constructive… https://t.co/lB6kvrc3R0— Bradley P. Moss (@Bradley P. Moss)1592342286.0
Bolton will obviously argue that he never revealed any classified information, but as Moss wrote in a Lawfare article about Omarosa's NDA, "If the individual does not follow that process, the courts have been clear time and time again that they will side with the government if and when it ultimately takes legal action—whether civil or criminal—against the individual, no matter how flimsy the underlying classification determination may have been." We shall see.
In the meantime, President Streisand Effect has succeeded in generating massive publicity for an already over-hyped book. If Bolton does manage to rehabilitate his image after his shameful failure to testify in the impeachment hearings, it will be thanks to the president's heavy-handed bullying tactics which turn him into a martyr. But if these guys want to kick the shit out of each other for our amusement during the election, we ain't mad about it.
KNOCK YOURSELVES OUT, ASSHOLES.
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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.