An attorney for former national security adviser John Bolton late Thursday night asked a federal judge to dismiss a lawsuit filed Tuesday against Bolton by the Trump Administration. The lawsuit aims to convince a judge to force Bolton to take steps to prevent the publication of his upcoming tell-all book entitled The Room Where It Happened: A White House Memoir. Portions of the tome have already been leaked to the press; some portions have already been published.
The more than 175 pages of court documents seeking to toss the case begin with a legal rocket launch of constitutional proportions. “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,” wrote Bolton attorney Charles J. Cooper.
The documents also reveal alleged attempts as recently as Tuesday, the date the lawsuit was filed, by the Trump Administration to erase critical portions of the book.
“On June 16, the Government delivered to Ambassador Bolton a copy of the book with wholesale redactions indicating the passages that it purportedly believes contain classified information” states a memorandum of law in support of Bolton’s motion to dismiss. “The Government’s redactions are extensive and sweeping, apparently eliminating passages describing or recounting a significant majority of the President’s conversations with his advisors and with foreign leaders. The Government also deleted numerous passages portraying President Trump in an unflattering light.”
The memorandum seeking dismiss the case also argues that the Trump Administration is asking for a prior restraint on publication. Such measures are extremely rare under First Amendment law.
“Prior restraints on political speech strike at the heart of the American constitutional tradition, and for that reason, the Supreme Court has refused to countenance them even where the Government has asserted that ‘the information to be revealed threatens grave and irreparable injury to the public interest,'” the argument says (quoting the famous First Amendment case of New York Times v. Sullivan).
The Administration has argued Bolton’s book is laden with classified information and therefore did not pass a required prepublication review. Aside from the civil suit, the Administration is also reportedly considering criminal charges against Bolton; Trump said during a Monday press conference he hoped Bolton “would have criminal problems” stemming from the book.
Bolton asserts through his lawyers that the White House is dragging out the prepublication review for the “transparent” political purpose of “preventing Ambassador Bolton from revealing embarrassing facts about the President’s conduct in office.” The prepublication review, Bolton’s attorney argues, continued well in excess of its usual, promised, or suggested time frame. The government’s four-month, line-by-line review of the book concluded, Bolton’s attorney argues, when Ellen Knight, the career official responsible for undertaking the review, on April 27 told Bolton “that’s the last edit I really have to provide for you.”
All that was left at that point, Bolton’s attorney argues, was for the government to send a standard form letter to Bolton to green light the book’s publication. The letter was never mailed. President Donald Trump, the attorney argues, “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.”
The political rationale for the book’s release in the months leading up to the Nov. 2020 presidential election is no longer shrouded any thin semblance of secrecy. The book’s timing actually weighs in favor of allowing the book’s release to proceed as planned, Bolton’s attorney said:
It is difficult to conceive of speech that is closer to the core of the First Amendment than speech concerning presidential actions in office, including actions at the heart of the President’s impeachment, and it is difficult to conceive of a greater attack on the First Amendment than the suppression of that speech in the service of a reelection campaign. But that, we respectfully submit, is precisely what is happening in this case.
Ambassador Bolton has written a memoir, The Room Where It Happened, describing his interactions with President Trump during the eighteen-month period in which he served as National Security Advisor to the President. Ambassador Bolton, who has decades of experience properly dealing with classified information, diligently and conscientiously attempted to avoid including anything in the book that would reveal classified information.
Attached to the 54-page memorandum is an eight-page affidavit by Bolton explaining the steps he took in attempts to comply with government prepublication requirements.
Among the other exhibit are five pages of Bolton’s handwritten notes which resulted from an early meeting with Knight. The notes themselves, which Knight retained before copying them and returning them to Bolton, are lightly redacted but mostly marked “unclassified.”
In still another exhibit, 39 pages of Bolton’s scribbled notes are now part of the court record; in yet another, 17 pages of Bolton’s typed editing notes are included.
An attached affidavit from Jonathan Karp, the CEO of Bolton’s publisher, Simon & Schuster, says the prepublication review process for Bolton’s book has been “highly unusual” when compared with other books the company has published for other key figures whose careers involved national security matters. Those books, Karp said, include titles by former counterterrorism official Richard A. Clarke, former National Security Adviser Susan Rice, former CIA intelligence analyst and National Security Council staff member Kenneth M. Pollack, former Secretaries of State Hillary Rodham Clinton and John Kerry, and journalists Bob Woodward and James Risen.
Karp said the process involving Bolton’s book became even more odd when Deputy Assistant to the President Michael J. Ellis assumed review of the book from Knight. “Mr. Ellis is a political operative, not a career professional [like Knight], and he has a documented history of politicizing intelligence and classification issues,” Karp said.
“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 added. “To be sure, the Book contains information that is likely to be highly embarrassing to the Administration and the President, but my understanding is that embarrassment alone is not sufficient reason to classify information. I am, therefore, not at all surprised that, nearly two months ago, Ms. Knight, the career professional responsible for reviewing the Book at the NSC, concluded similarly.”
Karp rubbished suggestions that the book could be tossed aside at this late juncture. Simon & Schuster began shipping 200,000 copies to booksellers nationwide starting May 22. The government didn’t file its lawsuit until June 16. Thousands of other copies have already been distributed internationally, and many news organizations have already obtained copies, Karp noted.
Read the memorandum of law below.
[Photo by LOGAN CYRUS/AFP via Getty Images]
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