A federal judge did not say when he would decide whether to grant the Trump administration’s move to block the release of former national security adviser John Bolton’s new book, but he did recognize a reality: The Room Where It Happened is already out there.
“The horse, as we used to say in Texas, seems to be out of the barn,” U.S. District Judge Royce Lamberth in a videoconference hearing on Friday.
Details of the book’s bombshell revelations about President Donald Trump already have been widely reported, as journalists obtained copies and an excerpt ran in The Wall Street Journal.
The Justice Department is seeking a temporary restraining order and preliminary injunction to block the book’s release, but also wants the judge to force Bolton to direct proceeds for the book to the government for the time being.
The book is set to be officially released and on sale on Tuesday.
But even with the circulation of the book, Lamberth raised some serious issues about the way that Bolton went through a required pre-publication review process to ensure that the book did not include classified information.
In questioning Bolton’s attorney Charles Cooper, the judge noted that instead of seeking relief in the courts if there was a dispute over the review process, Bolton just gave the publisher the greenlight.
“He had an obligation,” Lamberth said. “Once he invoked that process he can’t just walk away. He didn’t tell the government that he was walking away. He just walked away, and told the publisher, ‘Go publish.’ Isn’t that what happened?”
“He had no obligation to tell the government once he fulfilled his contractural obligations,” Cooper responded, adding that he received a “confirmation from an authorized official that the information was unclassified.”
The Justice Department claims that Bolton never received a written final clearance letter that signaled that he could go forward with the publication of the book. Its attorney, David Morrell, said that Bolton “bailed out” of the process as it dragged on.
The publisher of the book, Simon & Schuster, is proceeding with plans to release it, and in a court filing on Thursday, CEO Jonathan Karp said that the tome already is on its way to customers via online booksellers. Bolton also has taped an interview with ABC News for a one-hour special on Sunday, and has been lining up interviews all next week, the latest being interviews with CBS Evening News with Norah O’Donnell and The View.
Morrell said that if the DOJ obtained an injunction, it still could prevent wider distribution, including ebook sales and having booksellers return copies to their “rightful owner, which is the government of the United States.” “There is still an interest we have in limiting the mass distribution of the book,” he said.
A number of media organizations have weighed in on the case, including The New York Times, The Washington Post and Dow Jones & Co., along with the Reporters Committee for the Freedom on the Press, the ACLU and the PEN America Foundation which argue that an emergency order to block the book would be “prior restraint.” They argued that the government was trying to do an end run around the Supreme Court’s 1971 decision which ruled that the Nixon administration could not stop the publication of the Pentagon Papers.
“The idea that the horse is out of the barn is an understatement here,” Cooper said, noting that a CBS News reporter even had a copy of the book at the White House on Thursday when she asked the press secretary a question about it.
But Morrell said that Bolton agreed to a process that he never fulfilled.
“What we see here is an order directing Mr. Bolton to uphold his end of the bargain,” Morrell said.
In its lawsuit, the government admitted that the individual initially tasked with reviewing Bolton’s manuscript, Ellen Knight, senior director for Records Access and Information Security Management at the NSC, concluded in late April that “the manuscript draft did not contain classified information. Ms. Knight informed NSC Legal of the status of the review.”
When Bolton asked whether a letter would be available confirming the clearance, she said that the “process remains ongoing,” according to the DOJ lawsuit. Then another NSC official, Michael Ellis, senior director of intelligence, started an additional review at the request of Bolton’s successor, Robert O’Brien, who “was concerned that the manuscript still appeared to contain classified information,” the DOJ claimed.
In a Wall Street Journal op-ed earlier this month, Cooper wrote that when they asked Knight when they would receive the clearance letter, “Ms. Knight cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate’ and that there were ‘some internal process considerations to work through.’”
According an amended lawsuit the DOJ filed on Friday, Ellis completed his review on June 9, but did not receive training on classification until June 10. “After completing the training, Mr. Ellis reviewed his work and concluded that the information he received in the training did not alter his decisions,” the DOJ said.
Cooper, though, suggested that the Trump administration was wrongly using the national security review process to prevent the book’s release, given the memoir’s embarrassing details about Trump’s behavior.
“While the Government seeks to dispute Ms. Knight’s considered judgment, its claim is, quite simply, a regrettable pretext designed to cover up what is in fact a determined political effort to suppress Ambassador Bolton’s speech,” Cooper wrote in a court filing.
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