In a response filed ahead of a hearing set for today, former national security adviser John Bolton accused the Trump administration of using the government’s prepublication review process to suppress his memoir, The Room Where it Happened.
“If the First Amendment stands for anything, it is that the Government does not have the power to clasp its hand over the mouth of a citizen attempting to speak on a matter of great public import,” Bolton’s filing states. “Heedless of this tradition, the Government, at the behest of the White House, asks this Court to issue a prior restraint order suppressing the speech of his former National Security Advisor, Ambassador John R. Bolton, for the transparent purpose of preventing Ambassador Bolton from revealing embarrassing facts about the President’s conduct in office.”
In the filing, Bolton’s attorneys recount a “painstaking, iterative” prepublication review process in which Bolton, an experienced government official, “diligently and conscientiously attempted to avoid including anything in the book that would reveal classified information,” and which resulted in National Security Council senior director for records Ellen Knight confirming on April 27 that the 500-page manuscript contained no classified information.
“At that moment, Ambassador Bolton fulfilled any obligation he had under the express terms of his non-disclosure agreement with the Government,” the filing states. “Nevertheless, the President, and those acting at his direction, have sought to delay publication of the book until after the election by withholding the customary pro-forma letter confirming that the book was cleared for publication. When it became obvious that the prepublication review process had been abused in an effort to suppress Ambassador Bolton’s speech, Ambassador Bolton and his publisher, Simon & Schuster, set the book for release."
But most important, the filing argues, the Government’s request for a prior restraint are a moot issue. The book is already public.
“The practical reality is that neither Ambassador Bolton nor his publisher, Simon & Schuster, has any ability to stop copies from being sold to the general public on June 23," the filing states. "Indeed, the surreal nature of the Government’s request to enjoin publication and distribution of the book was driven home earlier today when a CBS News reporter, holding a copy of the book in her hand, questioned the President’s press secretary about passages in the book on the White House lawn.”
In a declaration in support of Bolton, S&S CEO Jonathan Karp adds that the publisher set its publication date based on Bolton's representation that the review process had been completed, and now that books have shipped, the publisher has no power to stop publication.
"Shortly after the NSC’s conclusion was communicated to it, Simon & Schuster took the necessary steps to formally accept the final version of the manuscript that Ambassador Bolton submitted, as provided under the terms of their publication agreement. Once Simon & Schuster formally accepted the manuscript for publication, and initiated the publication process, Ambassador Bolton lost any authority or ability he otherwise may have had to prevent or delay the Book’s publication," Karp told the court, adding that more than 200,000 copies of the book have already been shipped domestically and thousands more copies shipped around the world.
"Simon & Schuster no longer maintains control of the copies of the Book that have been shipped to the large national chains, online retailers, and small independent booksellers referenced in the previous paragraph of this Declaration. Once Simon & Schuster shipped them in response to a purchase order, title to the physical copies passed to the retailer or wholesaler," Karp further states. In addition, "virtually every major media organization in the United States possesses at least one copy of the book."
Karp also backed Bolton's view that the Trump administration is seeking to suppress the book for personal reasons.
"Although I do not consider myself an expert in national security matters, based on my review, it seems inconceivable to me that it contains any information that is properly classified or that would otherwise harm national security," Karp states, pointing to reports that Michael Ellis, the NSC’s senior director for intelligence, who "was recruited to restart the prepublication review process," is a political operative.
"The many public statements President Trump has made about the book further reinforce my belief that the Trump Administration’s actual objective is to shield the President from an unflattering portrait of his leadership and not to protect the national security interests of the United States," Karp states. "For all these reasons, I cannot help but conclude that President Trump has politicized the prepublication review process, including through this lawsuit, and that he is using it as a pretext to prevent the release of information of immense interest to the public that he fears could be damaging to his prospects for reelection."