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The Justice Department filed a civil lawsuit Tuesday against former national security adviser John Bolton seeking to prevent the publication of his forthcoming tell-all memoir, “The Room Where It Happened,’ asking a federal judge to order him to complete the pre-publication review and “not disclose classified information without written authorization” in the forthcoming book
The 27-page filing also requests that a judge order Bolton to take any actions “within his power” to stop the publication of his book as it’s currently drafted and “retrieve and dispose” of any copies that may have been sent out to third parties. The DOJ additionally requests for Bolton to be ordered not to further disclose information he wrote about in the book or release details “in any form or media… without first obtaining written permission”
“The United States is not seeking to censor any legitimate aspect of Defendant’s manuscript; it merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated publicly,” the filing says.
Additionally, the DOJ in the filing indicates it may seek to seize any profits Bolton derives from ‘The Room Where it Happened,’ asking the judge to order the accounting of “all monies, gains, profits, royalties, and other advantages” Bolton might receive from the book’s publication.
ABC News did not receive an immediate response to a request for comment from Bolton’s attorneys.
In a Wall Street Journal op-ed earlier this week, Bolton’s lawyer Chuck Cooper said White House attempts to accuse Bolton of violating his non-disclosure agreement were merely an attempt to “censor Bolton.”
“This last-minute allegation came after an intensive four-month review, after weeks of silence from the White House, and — as Mr. Eisenberg admits in his letter — after press reports alerted the White House that Mr. Bolton’s book would be published on June 23,” Cooper said. “This is a transparent attempt to use national security as a pretext to censor Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import.”
The filing Tuesday offers insight into the process behind the pre-publication review, acknowledging that the National Security Council’s senior director for records Ellen Knight had completed her review of the book and “was of the judgment that the manuscript draft did not contain classified information.”
The next person to take up the review was a deputy legal adviser for the NSC Michael Ellis, who according to the filing “was concerned that the manuscript still appeared to contain classified information, in part because the same administration that the author served is still in office and that the manuscript described sensitive information about ongoing foreign policy issues.”
The DOJ alleges in the filing that in its current form, the manuscript “contains certain passages, some up to several paragraphs in length—that contain classified national security information.”
“In fact, the NSC has determined that information in the manuscript is classified at the Confidential, Secret, and Top Secret levels,” the filing says.
Reacting to the filing Tuesday, attorney Mark Zaid, an expert in national security law who has previously represented multiple individuals through the pre-publication review process, noted the suit stops short of what would have been a more extraordinary step in filing for an injunction to halt publication of the book altogether.
“This is a routine civil action for breach of contract for (Bolton) violating his non-disclosure agreement, which his own lawyer has admitted he did,” Zaid said. “Absent something extraordinary happening, Bolton should be prepared to take out his check book and may never see a dime in profit. The lawsuit also asserts Bolton has released classified information which potentially subjects him to criminal prosecution under the Espionage Act.”
In the event the judge rejects the request from the DOJ, both Bolton and his publisher could still face potentially significant financial and even criminal jeopardy, legal experts argue, by moving forward in publishing a book that the White House claims contains classified information.
“I think that Bolton faces real risk to the extent he publishes material that a reasonable person could describe as classified,” Jaffer said. “Presumably, he has taken care to scrub the book of anything that could plausibly be described as classified information, but we have that this administration that takes extraordinarily broad view of its classification power.”
On Monday, in fact, President Donald Trump, in an exchange with reporters, argued his view that “every conversation with me as president highly classified,” garnering significant skepticism among those who have previously been involved with such pre-publication reviews.
“That is not something that any Executive Branch has responsibly said let alone any court has ever said,” said Joshua Geltzer, a visiting law professor at Georgetown who previously served as the NSC’s senior director for counterterrorism. “That legal theory would get them laughed out of court.”
But, Geltzer noted that it’s true the president does have broad classification authorities. And in the event that a judge were to agree that the book contained classified material after its publication, Bolton could face potential prosecution under the Espionage Act — though such cases are rare.
However, Bolton’s most imminent legal danger, according to Zaid, could be the open violation of his non-disclosure agreement as alleged by DOJ in the Tuesday filing.
“Bolton is in serious trouble with at least a breach of contract, which is literally a hands-down winner for the government,” Zaid said. “Bolton has an obligation before publication to receive approval from the government — a lack of approval breaches his contractual obligation and that has nothing to do with whether or not there’s one word of classified information in the book.”
The government has previously been successful in at least one recent instance in seizing a cash forfeiture from an author it deemed published classified information, in the case of former SEAL Team 6 member Matt Bissonnette who published the book “No Easy Day” about the raid that killed Osama bin Laden.
While the government did not pursue criminal charges in that case, Bissonnette agreed to forfeit $6.8 million in royalties from the book and apologized for not receiving pre-publication approval for some of the disclosures he recounted.
“The idea of trying to take the proceeds of the book that has not gone through publication review — that’s a lower bar for the Trump Administration to meet than ‘prior restraint’ actually blocking publication,” Geltzer said.
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