John Bolton's book The Room Where it Happened is a #1 bestseller, but the author's legal fight against the government in not over. In a July 16 motion, the former U.S. National Security Adviser, who still faces an effort to seize his royalties (as well as possible criminal charges), asked a federal court in Washington D.C. to dismiss the DOJ's remaining civil case against him, arguing that he has not breached any of his nondisclosure agreements—but even if the court finds otherwise, Bolton contends, the agreements are overbroad and unconstitutional.
In a 44-page legal memorandum, Bolton argues that he in fact was not required to submit his manuscript for prepublication review by government officials, but did so out of "an abundance of caution." What followed, filings suggest, was "a painstaking, iterative" examination with Ellen Knight, the NSC’s senior director for Records, Access, and Information Security Management, a process that "lasted almost four months," and went through the 500-page manuscript "in four waves, page by page and often line by line," and which led to "a host of revisions."
On April 27, Bolton says Knight confirmed to him that the manuscript was free of classified information. However, the book was then leveled up to the White House, where officials undertook an unusual and secretive second review while administration officials refused to issue the "pro forma closing letter" clearing the book for publication. Sensing that the Trump administration was misusing the review process to suppress a book that would embarrass the president, Bolton decided to to press ahead with publication without a formal release.
On June 20, federal judge Royce Lamberth denied the DOJ's emergency application for an order blocking publication of Bolton's book. But in his 10-page opinion and order, Lamberth rebuked Bolton.
"Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong," Lamberth held, adding that Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."
But in its motion to dismiss the DOJ's suit filed last week, Bolton's team said a full examination of the facts will show that Bolton was not wrong.
"The Government’s claims are all foreclosed by the text of the very contractual documents upon which they purport to be based," Bolton attorneys argue. And even if the court finds the nondisclosure agreements did bind Bolton from moving forward with his book, "imposing such a requirement—in effect, a blanket prior restraint of virtually any speech by former government employees—that requirement would be flatly contrary to the First Amendment."
At this point, with roughly a million copies of Bolton's book in print, it is unclear how aggressively the government will pursue the case, as a pitched legal battle would help keep the book in the headlines during the election season. Further, the litigation would also effectively put the government's prepublication review process on trial, including claims that the Trump Administration has abused the government review process to suppress books that threaten to embarrass the president.
On the latter score, Bolton has an ally in challenging the potential misuse of the prepublication review process. On June 26, The Knight First Amendment Institute at Columbia University and the ACLU filed a Freedom of Information Act (FOIA) lawsuit seeking records related to the the government's prepublication review processes.
The suit seeks records pertaining to the prepublication reviews of Bolton’s memoir, as well as for previous books reviewed across a range of agencies under both the Trump and Obama administrations. The legal action comes after Knight Institute lawyers submitted an initial FOIA request on January 27, 2020, which has not yielded any "responsive records" to date.
The Bolton case is far from the first time authors and publishers have accused the government of using the review process to suppress controversial viewpoints or disclosures. In April of 2019, The Knight Institute and the American Civil Liberties Union sued the government seeking more transparency regarding various agencies' prepublication book review processes. On April 16, 2020, however, a district court dismissed that case, which is now awaiting an appeal.
But with an election just months away, Knight Institute attorneys say the stakes have been raised. “Former public officials are uniquely positioned to share insights into government activities,” said Meenakshi Krishnan, Legal Fellow at the Knight First Amendment Institute. “Any attempt to use prepublication review to suppress criticism in advance of an election raises significant First Amendment concerns.”