A federal judge last week handed former national security adviser John Bolton a potentially significant win in his ongoing legal battle with the government over his bestselling memoir The Room Where It Happened.
In a January 14 opinion, Judge Royce Lamberth denied the Department of Justice’s bid for a quick victory in the case, rejecting the government’s motion for Summary Judgment without prejudice, while granting Bolton’s motion for discovery. The decision means Bolton’s attorneys can now pursue evidence which they insist will show that senior White House officials acted in bad faith by improperly prolonging the pre-publication review process and/or attempting to improperly influence classification decisions.
In its July 30, 2020 motion for Summary Judgment against Bolton, DoJ attorneys had argued that it did not matter whether the government had acted in bad faith by refusing to clear Bolton’s book for publication, because Bolton had clearly breached his non-disclosure agreement by moving ahead with the book before receiving a formal written clearance, as required by the plain text of the agreements.
Lamberth rejected that contention, however, acknowledging a “strong public policy concern” in allowing Bolton to pursue his defense.
“To hold otherwise would create tremendous moral hazard, because otherwise the government would face effectively no consequences for conducting pre-publication reviews in bad faith,” Lamberth wrote. “The Court does not countenance any individual’s decision to short-circuit pre-publication review and publicly disseminate potentially classified information. But nor does it wish to free the government from all consequences for potential misconduct.”
If the DoJ had prevailed it would have paved the way for the government to begin the process of seizing Bolton's royalties, including the author's reported $2 million advance. Instead, the case will now proceed to discovery. However, in denying the DoJ's bid "without prejudice," Lamberth left the door open for the DoJ to pursue their bid for Summary Judgment once discovery is complete.
The discovery process could be lengthy and will certainly be complicated. Under Lamberth's order, Bolton's discovery will be limited to "allegations that President Trump or senior White House officials acted in bad faith by intentionally delaying pre-publication review and by attempting to unduly influence classification decisions." And because it involves potentially sensitive information and questions of executive privilege, the process will be closely overseen by the court and rolled out in phases, one at a time, with Bolton required to seek authorization from the court to begin each phase of discovery.
The bigger question, of course, may be whether the DoJ under a new administration will continue to pursue the case against Bolton.
In a letter filed with the court last year, attorneys for Ellen Knight, the National Security Council official who led the pre-publication review of Bolton's book, bolstered Bolton's claims of potential bad faith in the review process. In the19-page letter, Knight confirmed that she had deemed the book clear of classified information after an intensive review process. However, final written approval, she claims, was then withheld by political appointees who later unsuccessfully pressured Knight to change her story, and, when she refused, eventually removed her from her post.