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Bolton scores Pyrrhic victory in court ruling on Trump book

In this file photo, Donald Trump speaks to members of the media as former National Security Adviser John Bolton listens during a meeting with President of Romania Klaus Iohannis in the Oval Office of the White House August 20, 2019 in Washington, DC. (Alex Wong/Getty Images/TNS)

A federal judge excoriated former National Security Adviser John Bolton for exposing the U.S. to harm with his tell-all memoir about President Donald Trump but said it’s too late to issue an order that would stop publication of the book.

U.S. District Judge Royce Lamberth in Washington on Saturday rejected the Justice Department’s last-ditch attempt to block the publication on national security grounds, paving the way for “The Room Where It Happened: A White House Memoir” to go on sale June 23.

In his judgment, Lamberth slammed Bolton for gambling with national security and going ahead with the book before it cleared a prepublication review by the Trump administration to ensure it did not contain classified information.

“He has exposed his country to harm and himself to civil (and potentially criminal) liability,” the judge wrote. “But these facts do not control the motion before the Court. The government has failed to establish that an injunction will prevent irreparable harm.”

He also wrote that the government is likely to prevail as the case moves to the next stage of the breach-of-contract lawsuit, which could allow it to seize Bolton’s $2 million book advance as well as any royalties he receives. Trump unleashed on Twitter, saying Bolton must “pay a very big price.”

The legal battle over the book began Tuesday when the Justice Department sued Bolton for breach of contract, claiming he had pulled out of the prepublication review process that he agreed to undergo when he got his security clearance. The next day, the government escalated its response, seeking an injunction to stop publication, even though detailed excerpts were already appearing in major newspapers and some 200,000 copies had been shipped to booksellers.

According to reviews and published excerpts, Bolton’s book paints an unflattering portrait of the White House, describing Trump as ignorant of basic foreign policy facts and motivated largely by political self-interest. In one passage that has been widely reported, Bolton wrote that Trump urged the Chinese president, Xi Jinping, to buy agricultural products from the U.S. because it would help the Trump campaign build political support in rural states.

“It’s hard if you’re John Bolton to wake up this morning and say, ‘Thank you, Judge Lamberth, I’m vindicated,’” said Harry Sandick, a former federal prosecutor in New York. “The court concluded that on the merits he did not follow the rules.”

The Justice Department did not immediately respond to an email asking whether it plans to appeal before the book is released on Tuesday. Bolton’s lawyer, Chuck Cooper, said in a statement that he took issue with judge’s conclusion that Bolton had breached his contract. “The full story of these events has yet to be told — but will be,” he said.

Adam Rothberg, a spokesman for the book’s publisher, Simon & Schuster, said the company was “grateful that the Court has vindicated the strong First Amendment protections against censorship and prior restraint of publication.”

In court filings, Bolton argued the government delayed the review process to ensure the book didn’t come out before November and hurt the president’s reelection chances. He also said the book’s publication should be protected under the First Amendment.

The judge ruled that the government hadn’t carried its burden of establishing that an injunction would prevent “irreparable injury” — a requirement for securing such a restraining order — because the book is already circulating widely.

“By the looks of it, the horse is not just out of the barn — it is out of the country,” Lamberth wrote.

The prepublication review process began about six months ago, when Bolton submitted an early draft to Ellen Knight, an official on the National Security Council, according to the government’s lawsuit. After several rounds of edits, Knight concluded in April that the book no longer contained classified information, the complaint said. But in May, Michael Ellis, a senior NSC official, reopened the review process.

Bolton’s decision to go ahead with publishing the book, even as the government continued to examine it, was an “unprecedented decision by an author to submit a manuscript for pre-publication review but then to bail out of that process before it’s completed,” government lawyer David Morrell argued at a hearing on Friday. “There is a massive interest that the government has here in ensuring that authors who become disgruntled and don’t like the process aren’t able to just bail out.”

All week, critics of the government have speculated that Trump may have played a role in delaying the pre-publication review of the book. Under questioning from Lamberth, Morrell said on Friday that he wasn’t aware of whether Trump had personally directed intelligence officials to designate material in the book as classified.

“There are certain passages in this book that will damage the national security of the United States,” Morrell said. “These NDAs aren’t just bureaucratic contrivances. They serve an important function,” he said, referring to a nondisclosure agreement that Bolton signed.

The judge slammed Bolton’s conduct in his ruling, saying “the damage is done” and there’s no returning to the status quo after his unilateral action.

“In taking it upon himself to publish his book without securing final approval from national intelligence authorities, Bolton may indeed have caused the country irreparable harm,” Lamberth wrote. “But in the Internet age, even a handful of copies in circulation could irrevocably destroy confidentiality.”

The judge’s decision aligned with predictions from legal experts who had dismissed the possibility that the White House could stop the book’s publication, citing the Pentagon Papers case, in which the Supreme Court rejected a similar request from President Richard Nixon.

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in a statement that court was right to reject the government’s request for a prior restraint, especially since the requested injunction went further than the one sought in the Pentagon Papers case.

“In other respects, though, the ruling is a troubling reaffirmation of broad government power to censor in the name of national security,” Jaffer said. “The prepublication review system puts far too much power in the hands of government censors, and reform of this dysfunctional system is long overdue.”


© 2020 Bloomberg News

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