Trump's Lawsuit Against Bolton Will Fail

www.washingtonpost.com THURSDAY, JUNE 18, 2020 POLITICS Trump’s lawsuit against Bolton will fail

By THEODORE J. BOUTROUS JR. cording to the complaint, Ellis, a Trump politi- & Schuster from publishing, this tortured ap- cal loyalist who had previously served in the proach cannot hide that a prior restraint is he Trump administration’s lawsuit White House counsel’s office and played a bit exactly what the administration is seeking: against John Bolton is a paper tiger, de- part in the Ukraine episode, was supposedly a court order stopping publication of a book. T signed for a showy roar of outrage but “concerned that the manuscript still appeared The chief government reviewer of the book con- with little prospect of any real bite. to contain classified information, in part be- cluded, after exhaustive analysis and editing, The suit, filed by the Justice Department late cause the same Administration that the Au- that the book contains no classified informa- Tuesday, purports to seek to halt publication thor served is still in office and that the manu- tion. But even if it did, that would not be suf- of Bolton’s White House memoir, “The Room script described sensitive information about ficient to justify a prior restraint. Ellis’s vague Where It Happened.” Scheduled for release on ongoing foreign policy issues.” “concerns” and Trump’s baseless assertion that June 23, the book reportedly contains damag- But that’s just another way of saying the every conversation with him is classified do not ing information about President Trump’s han- book includes recent, newsworthy informa- come close to justifying a prior restraint. dling of national security issues, including the tion of public concern that the president Moreover, the cat is out of the bag. The Ukraine matter that got him impeached. wants to conceal. And for his part, Trump, complaint doesn’t even name the publisher The lawsuit — followed by Wednesday who has made clear his desire to delay as a defendant, and the books have already night’s bid for an emergency hearing and order publication of the Bolton book until after been printed and shipped to warehouses. — is almost certain to fail to achieve Trump’s the presidential election, on Monday gave Advance copies have been distributed to quest to block publication of the book. Instead, reporters a slightly different, and equally journalists and others. So even if the Jus- the complaint on its face demonstrates that unconvincing, spin on the White House’s tice Department can persuade a judge to this is just the latest example of Trump flout- efforts to muzzle Bolton: He views “every enjoin Bolton, the non-parties remain free to ing the First Amendment and manipulating conversation with me as president highly disseminate the book. and abusing the national security apparatus classified” and he thinks that “maybe Relying on a 1980 Supreme Court case, Snepp for personal and political purposes to hide [Bolton] is not telling the truth.” v. United States, the Justice Department asks information of great public concern from the The administration’s lawsuit alleges that the district court to strip Bolton of profits from American people. Bolton, if the book is published next week, will the book by imposing a “constructive trust for Bolton, who served as national security be in breach of his nondisclosure agreements the benefit of the United States.” But this case adviser for 17 months, signed standard non- and fiduciary duties to the United States. It is nothing like Snepp. The former CIA agent disclosure agreements with the government asks the court to order Bolton “to instruct or in Snepp never even presented a manuscript agreeing to submit any manuscript about his request his publisher, insofar as he has the au- of his book to the agency before publishing. tenure to the White House for prepublication thority to do so, to further delay the release In fact, the Supreme Court said that the agent review so that the government could ensure date.” This effort will fail for several reasons. “deliberately and surreptitiously” avoided that it did not contain classified information. The biggest problem is that the administra- the prepublication review process. Here, by As the Justice Department’s own lawsuit con- tion is seeking a prior restraint of speech be- contrast, Bolton complied with the prepubli- cedes, Bolton did just that on Dec. 30, 2019, fore it occurs — not just damages for injuries cation review process in good faith. In fact, it and then engaged in a painstaking four-month allegedly caused by speech after the fact. The is not Bolton but the Trump administration back-and-forth with Ellen Knight, the official Supreme Court has never upheld a prior re- that has breached the contract by unreason- charged with conducting the prepublication straint on speech about matters of public con- ably withholding clearance — not to protect review. The process included lengthy in-per- cern, and in the Pentagon Papers case refused classified information or national security, but son meetings with Bolton and detailed edits to enjoin publication of a trove of classified for the unlawful purpose of helping Trump’s purging the manuscript of any information information concerning the Vietnam War. Any political chances in November. Knight deemed classified. prior restraint, the court explained, “bear[s] a In its 2014 decision in Lane v. Franks, As a result, the complaint acknowledges heavy presumption against its constitutional the Supreme Court reiterated that “there is that, by April 27, 2020, Knight “had completed validity.” As the court elaborated in Nebraska considerable value ... in encouraging, rather her review and was of the judgment that the Press Association v. Stuart, prior restraints than inhibiting, speech by public employees. manuscript draft did not contain classified are “the most serious and the least tolerable ... ‘The interest at stake is as much the pub- information.” That should have been the end infringement on First Amendment rights” lic’s interest in receiving informed opinion of the matter — and Bolton and his publisher and “one of the most extraordinary remedies as it is the employee’s own right to dissemi- Simon & Schuster should have been free to re- known to our jurisprudence.” nate it.’ ” Trump’s effort to hide this book lease the book. While the Justice Department’s complaint from public view is an affront not just to Then the White House’s new senior director tries to evade the prior restraint label by ask- Bolton’s First Amendment rights but also to for intelligence, Michael Ellis, intervened. Ac- ing the court to order Bolton to stop Simon the rights of all of us.