The Justice Department’s attempt to suppress publication of The Room Where It Happened, the new memoir by former national security adviser John Bolton, is constitutionally dangerous. By approving the lawsuit, Attorney General William Barr again proves his political hackery and legal unseriousness.
Fortunately, this assault on free speech surely will fail: The suit’s constitutional infirmity is obvious, and the Trump administration’s bad faith is manifest.
It is well-established that prior restraint of publication of matters of public concern is allowed only in the rarest circumstances. The most famous Supreme Court case disallowing prior restraint was the Pentagon Papers case, New York Times v. United States, from 1971. There, even though most of the justices agreed the information the newspaper wanted to publish was indeed classified, and that its publication likely would harm at least some U.S. interests, a 6-3 court majority still ruled that the First Amendment’s free-press guarantee forbade the government from banning its publication.
Indeed, even centrists Byron White and Potter Stewart, the two justices in the majority who were the most respectful of the president’s desire to protect national security through control of information, wrote that it is especially important for press freedoms to be guaranteed in the same realm of national security. Specifically, because the courts and Congress have less constitutional power to restrain the executive in matters of defense and foreign affairs, they wrote, “In absence of governmental checks and balances, the only effective restraint upon executive policy and power in [these realms] may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.”
In subsequent cases, the high court unanimously has ruled against prior restraint. Barr knows this. Yet Barr personally, and quite dishonestly, has been carrying the fight against Bolton’s book. He has done so even though his department’s suit against Bolton is so weak that it filed against Bolton himself, not the publisher, and merely asks Bolton to “further delay the release” of the book “insofar as he has authority to do so.”
This is feeble. It shows the Justice Department knows it has no real authority to stop the book’s publication, so it is attempting to put the onus on Bolton to “instruct or request” that his publisher do so. [All italics are mine.]
(The administration also charges Bolton with violating nondisclosure agreements, but that is a matter to be determined post-publication.)
Unlike in the Pentagon Papers case, Bolton’s material isn’t obviously classified in the first place, and it is almost impossible to be of a nature anywhere near as damaging as the release of detailed military information at a time when the nation was embroiled in the hot Vietnam War.
Indeed, the bad faith of the administration is quite evident. Rather than trying to enjoin Bolton from airing information that Bolton knew was already and clearly classified, the administration seems (in effect) to be classifying material after the fact, in response to seeing Bolton’s drafts. The government’s own suit acknowledges that the official whose very job it is to vet manuscripts for classification concerns told Bolton back on April 27, after months of Bolton’s thorough cooperation with the review, that she “was of the judgment that the manuscript did not contain classified information.”
Prepublication review is supposed to be limited only to career government officials expert in that task. Nonetheless, President Trump’s new senior director for intelligence, Michael Ellis, jumped in to demand an even further review of the manuscript. In sum, Ellis was trying to assert a classification status on information that had not previously been clearly classified.
Trump himself let the cat out of the bag when he told reporters that “every conversation with me as president is highly classified.”
Uh, no. That’s not how it works. And even if that was how it works, it still wouldn’t justify prior restraint of publication, under the clear standard of New York Times v. United States.
Bolton’s attorney Chuck Cooper, a longtime conservative legal superstar, wrote in the Wall Street Journal that Trump and Barr are engaged in “a transparent attempt to use national security as a pretext to censor Mr. Bolton.” Cooper is right. Trump may not know any better, but Barr certainly does, which is what makes his direction of this case so execrable.
