Lawyers for John Bolton and the Justice Department clashed in court today as the Trump administration seeks to convince a federal judge to block the sale of the former national security adviser’s book over claims it still contains classified information.
The legal teams for each side presented their cases on Friday during a phone-in oral argument before Judge Royce Lamberth of the U.S. District Court for the District of Columbia. The Justice Department was represented by Deputy Assistant Attorney General David Morrell, and Bolton was represented by attorney Charles Cooper. Lamberth, nominated to the bench by President Ronald Reagan, has argued in the past that courts are “far too deferential” when it comes to classifications based on claims of national security, and opened with similar assertions on Friday.
Lamberth pressed both sides on their arguments throughout the hearing.
“I understand the case law to be that courts do not give blind deference to what is classified and that I am going to decide de novo whether this information is classified,” Lamberth said. “I give blind deference, but not blind deference … I have to decide whether it is likely that the government can show that this information is classified.”
The judge pointed to tens of thousands of books already being shipped across the country and said that “it seems to me … that the horse, as we used to say in Texas, seems to be out of the barn” and that “it certainly looks difficult to me as to what I can do about those books all over the country.”
The Justice Department, pushing to halt next Tuesday’s sale of Bolton’s book and to return to the pre-publication review process, argued that the former national security adviser needed to be held accountable for allegedly breaching his contract in sharing classified information.
“Mr. Bolton agreed … that he would not publish a book containing classified information,” Morrell argued. “In exchange for money, he has broken that agreement … This is a problem of his own making, and the onus is on him on how to solve it.”
Morrell claimed that “there are certain passages in his book that will damage the national security of the United States” and said that could be confirmed by Director of National Intelligence John Ratcliffe.
Morrell told the judge that “an injunction from you” would “focus the mind and spur creativity” from Bolton and his publisher, Simon & Schuster. Morrell said that Bolton wasn’t allowed to engage in “self-help” if he was “unhappy” with the pre-publication review process, and noted that instead of going to court, Bolton “defied” the government and went ahead with publishing the book anyway. The DOJ lawyer said Bolton’s “brazenness” should not make the case moot and called Bolton’s actions “unprecedented.”
The Trump administration took emergency action on Tuesday and Wednesday to try and block the release of Bolton’s book after excerpts leaked across the media landscape. The application that the Justice Department filed with the court resulted in the judge scheduling a hearing related to the Justice Department’s effort “seeking to enjoin publication of a book containing classified information.”
Bolton, who worked for Trump in 2018 and 2019 and as United Nations ambassador under President George W. Bush, filed on Thursday a 175-page combined motion to dismiss the complaint against him and in opposition to the Justice Department’s emergency application for a temporary restraining order to block the sale of his book, The Room Where It Happened, arguing that the government’s actions were an “attack” on his First Amendment rights.
“There is still an interest we have in limiting the further mass dissemination of this book,” Morrell argued. “The government still has an interest in stemming the flow of classified information out of Simon & Schuster.”
Lamberth said he had not seen the manuscript yet and didn’t know what specifically it was that the Justice Department was claiming was still classified.
Bolton’s lawyers argued this week that the Justice Department “at the behest of the White House, asks this court to issue a prior restraint order suppressing the speech” of Bolton “for the transparent purpose of preventing Ambassador Bolton from revealing embarrassing facts about the president’s conduct in office.”
Cooper argued Friday, before the hearing began, that he also believed “the horse is out of the barn” was a proper metaphor. And the Bolton lawyer quipped that “if a picture is worth a thousand words, a video clip is worth a thousand metaphors.” Cooper did so as he pointed to Trump being questioned by a reporter who had the book in hand, emphasizing that thousands of copies were now out there.
“The idea that the horse is out of the barn is an understatement here, Your Honor,” Cooper argued. “This really isn’t a judicial proceeding. This does not have as its purpose actually convincing you to order John Bolton to do something he is utterly powerless to do.”
Cooper called the proceeding “theater” and the courtroom “a stage” as he told the judge that the Justice Department was trying “to enlist you as a player.” Bolton’s lawyer said that “at the end of the day there is nothing that Ambassador Bolton can do” about the books that had been shipped nationwide.
Bolton’s lawyer called the prepublication review process that Bolton had gone through “exhaustive, meticulous, and deeply-searching.” And he argued that Bolton “fulfilled his contractual obligation, not just in spirit, but to the letter.”
Lamberth immediately interjected to say, “That’s not true.” The judge pointed out that Bolton did not receive final written authorization for the book and the former national security adviser chose not to sue in court, but rather go ahead with publishing the book.
“I don’t really understand why he chose to take that risk,” Lamberth said. “He just walked away and told the publisher: go publish.”
What seemed to concern the judge the most wasn’t Bolton’s classified information nondisclosure agreement (known as an SF-312 form), but rather Bolton’s sensitive compartmented information nondisclosure agreement. Bolton’s lawyer claimed Bolton only learned the government was claiming there was SCI in his book from court filings this week, rather than during the prepublication review process.
Cooper argued Bolton had acquiesced to four waves of prepublication review with the National Security Council’s prepublication review, but that there was “never a hint” that there was SCI-type classified information in the book until now.
Bolton’s lawyer said that the Justice Department admitted Friday that Michael Ellis, the new NSC senior director for intelligence programs who conducted the more recent review of Bolton’s complaint, received his classification review training after he’d reviewed Bolton’s book, though Ellis says his training didn’t change his conclusions.
Lamberth ended by pointing out that National Security Agency Director Gen. Paul Nakasone weighed in to say that Bolton’s book contains classified information, quipping that four-star generals in the Trump administration have stood up to Trump before, and so “I start with that general having some credibility.” The judge noted that Director of the National Counterintelligence and Security Center William Evanina said Bolton’s book had classified information too and said that “he’s not exactly a Trump crony” and that the judge believed he also has “credibility.”
“I do not have any basis on which to challenge those affidavits,” Cooper said. “I don’t have any basis to question the credibility of the men who signed them.”
Cooper said these affidavits “don’t make the impossible, possible” nor “the unconstitutional, constitutional.”
The Justice Department got the last word.
“If we’re going to be offering animal metaphors, I’ll offer my own: hogwash,” Morrell said at the end of the hearing. “Who let the horse out of the barn? Mr. Bolton…. He has flung the barn door open, let the horse run out, and looked us, asking: What are you going to do about it?”
Morrell said: “There is no First Amendment right to publish classified information. This is a contract matter.”
The Justice Department first filed a motion on Tuesday to block Bolton from receiving any of the proceeds from the sale of the book. There have been multiple reports that the Justice Department may be considering criminal charges against Bolton for allegedly disseminating classified information.
Bolton and Simon & Schuster forged ahead with sending copies of the book to warehouses across the country, and many excerpts of the book were reported by the media.
Bolton wrote in one section of his book that Trump asked Chinese President Xi Jinping last year to assist him with his reelection effort, but U.S. Trade Representative Robert Lighthizer, who claims to have been present at that discussion, told lawmakers at a hearing Wednesday that Bolton’s claims were “absolutely untrue.” The Trump national security adviser also wrote about what he called the “Ukraine fantasy conspiracy theories” that led up to Trump’s impeachment.
Trump told the Wall Street Journal that Bolton is a “liar,” and Secretary of State Mike Pompeo called him “a traitor who damaged America by violating his sacred trust with its people.”
Bolton offered to testify in Trump’s Ukraine-related impeachment trial earlier this year only if the Republican-led Senate issued a subpoena against him, which the upper chamber declined to do. The Democrat-led House had asked Bolton to testify, but after he refused, he declined to issue a subpoena to compel his testimony.
The House impeached Trump on allegations of abuse of power related to Ukraine and of obstruction of Congress in December, but the Senate acquitted him following an impeachment trial in February.
