Former National Security Advisor John Bolton leaves the stage after discussing the "current threats to national security" during a forum moderated by Peter Feaver, the director of Duke's American Grand Strategy, at the Page Auditorium on the campus of Duke University on February 17, 2020, in Durham, North Carolina (Melissa Sue Gerrits/Getty Images).
John Bolton knew better.
Specifically, the onetime national security adviser likely knew that his retention and transmittal of classified information to persons who lacked security clearances violated the Espionage Act and, given his knowledge and expertise in national security, that his conduct potentially risked endangering the security of the United States. Indeed, Bolton recently criticized Trump officials for using a public app Signal in a group chat to discuss a forthcoming military strike in Yemen that inadvertently included a journalist. And, by the way, it looks like the Hegseth group's poor conduct was negligent — while Bolton's seems intentional.
The 18-count indictment against Bolton by a federal grand jury in Maryland alleges that Bolton used his personal email accounts and encrypted messaging app to transmit national defense information from his diary entries to his wife and daughter. And if doing so was not enough, one of these email accounts was apparently hacked by Iran in 2021. And, by the way, Bolton didn't acknowledge to the investigators what he had done.
An investigation into Bolton's conduct was initiated by the Department of Justice in the first Trump administration but was dropped after Biden took office. Now, after Bolton's repeated attacks on Trump, especially in his 600-page book in 2020, "The Room Where It Happened," in which he annihilates Trump's foreign policy record and describes Trump as "unfit for the office," Bolton was near the top of Trump's enemies list and someone whom Trump wanted to destroy.
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It's understandable that Trump critics see Bolton as an innocent victim of Trump's vengeance and equate the charges against him with the recent indictments of former FBI director James Comey and New York State Attorney General Letitia James. Indeed, Trump's virulent public statements about Bolton and his demand that Bolton be indicted reinforce the perception that Bolton has been targeted for political reasons by a lawless Department of Justice. Bolton will surely claim, as have Comey and James, that he has been selected for prosecution by a vindictive president and his case is an egregious example of a malicious prosecution by Trump enablers in the Justice Department, and that his indictment should be dismissed without a trial.
But charging the government with malicious prosecution requires showing that the prosecutor lacked probable cause to bring the charge. And while such a showing may be made in the Comey and James cases, it most assuredly cannot be made about the Bolton charges. A cursory reading of the lengthy indictment contains ample evidence of Bolton's wrongdoing. It portrays a man willing to risk his country's security not for any laudable principle or a belief that the end justifies the means but for the tawdry and pecuniary motive to later sell a book he planned to write.
Indeed, why did Bolton refuse to testify at the House impeachment inquiry into President Trump? Was it because, as he claimed, his testimony "would have made no difference"? Was it because he felt his testimony would be superfluous? Or was it because by testifying he would be giving a preview of parts of his book and would make the book less marketable?
Even assuming Bolton can make a convincing argument that he is the victim of a weaponized Justice Department, should that matter? Or should the public see Bolton as someone who, if the allegations in the indictment are true, grossly abused his office and undermined national security, in effect to make a buck?
Let's be clear about this. Bolton, to keep an accurate record, made notes on his computer in real time of events happening at the National Security Council and then sent the notes to the computers of his (trustworthy) wife and daughter, thereby removing them from his own system and preventing government investigators from learning that he was exposing government secrets to persons who had no clearance to receive such information.
The scandal arising from Bolton's conduct should be a teachable moment for anyone planning to go into public service or is already there. There are sound reasons why professional ethics rules seek to create a lengthy timeline between departing from government service and entering the private world of business or client representation. The rules seek to prevent conflicts of interest between public and private interests.
But Bolton, a Yale-educated lawyer, knew well and disregarded the rules for government service. He wasn't simply keeping a diary of his government service so that in the future he could accurately describe his important work to his grandchildren, although that too probably would have been wrong. No. Bolton intended to write a book, for which he reportedly got a $2 million advance.
Yes, it may be true that Bolton's book was vetted by the CIA to ensure that nothing in the book could compromise national security. But still! If one enters public service, particularly public service that relates to national security, one needs to be willing to take a virtual bullet to honor that oath. We have no idea why Trump apparently retained classified documents at Mar-a-Lago after his presidency was over – maybe to write a book, or maybe to protect himself if he was later indicted. However, Bolton was already keeping a diary record for himself when his Trump presidency service had just begun, and the reason for Bolton keeping that record is self-serving.
And, yes, Bolton may be getting a raw deal because the president hates him. But if he's let off the hook in court due to Trump's pernicious role in the case, what message will that send to aspirants to government service? That maybe it's worth taking a chance, but be more careful than Bolton?
One of the principal functions of criminal law is to deter others from engaging in criminal conduct. That's the key message from the Bolton case, which we should be mindful of.
Bennett L. Gershman is a former New York prosecutor and Distinguished Professor of Law at Pace Law School. He is the author of "Prosecutorial Misconduct." Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Petrillo, Klein & Boxer. He is an adjunct professor at both Fordham and Cardozo Law Schools and is the author of "Blindfolds Off: Judges on How They Decide."
This is an opinion piece. The views expressed in this article are those of just the author.
