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Bolton book decision: Right answer, wrong reasoning

John Bolton
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On June 20, 2020 U.S. District Court Judge Royce C. Lamberth denied the Trump administration’s request to block the release of former national security advisor John Bolton’s “tell all” book. The narrow holding denying the government’s request to stop the distribution of the book was correct. But the court’s reasoning was flawed, and could be used to silence future whistleblowers and embolden government censors.

The decision to permit the release of the book was based on pragmatic grounds. The court reasoned that because 200,000 copies of the book were already in distribution worldwide, an order blocking the book’s release would be futile. As Judge Lamberth put it: “the horse is already out of the barn.”

However, the Court found that the government was correct on the merits. The court agreed with the Trump administration that Bolton violated prepublication review requirements. These requirements apply federal employees who have access to classified information. Current or former government employees must submit publications to a censor for review and approval prior to publishing a book or an article. The scope of the review is limited to ensuring that state secrets are not spilled.

Judge Lamberth’s decision indicated that if the “horse” was not already “out of the barn,” he would have issued the injunction and suppressed the publication of the book. The court gave the Trump administration the leeway to use prepublication procedures to suppress criticisms in the future. Moreover, the vast majority of persons who are subject to the prepublication rules are not in a position to have 200,000 copies of their publication ready for release prior to the completion of the review process.

Had Bolton not obtained a publisher willing to print 200,000 copies of his book, and commence distribution worldwide, the American people could have been denied access to Bolton’s information until after the 2020 presidential (and congressional) elections.

Although the Court did not block the publication of the book, it left open the possibility that Bolton could be criminally prosecuted. It also indicated that the government could seize all of his book royalties or subject him to other penalties. This part of the court’s decision will have a chilling effect on whistleblowers who try to use the prepublication process to inform the American people about misconduct, but are stymied by long delays.

“Yesterday’s news wraps fish.” In terms of the impact a whistleblower disclosure may have on congressional action, public opinion, or a voter’s decision, timing is everything. Delaying the exposure of government misconduct can have the same effect as stopping the disclosure altogether.

In the Bolton book case, Bolton submitted his book to government censors on Dec. 30, 2019. However, the clearance process was long delayed, in violation of law. For example, the nondisclosure agreement Bolton was required to sign that covered a review of sensitive compartmented information (the most highly secret information for which Bolton had access), set a strict time limit for the government to conduct its review. The agreement only permitted the government a “reasonable opportunity to determine” if a book contained classified information, that under the rules cannot “exceed 30 working days from date of receipt.

Thus, if the government followed the law the book should have been reviewed and cleared well before the Senate was asked to vote on subpoenaing Bolton to testify at president’s impeachment trial. Instead, the review of the book was delayed until long after the impeachment proceedings ended.

On April 27, 2020, the government official with responsibility to clear Bolton’s manuscript finally completed her review. She concluded that Bolton’s book “did not contain classified information.” This should have ended to story, and the book should have been cleared for publication forthwith. But that letter did not come to pass. Instead the review process went radically awry.

The Trump administration ignored the reviewers findings and appointed a new censor to start the “review” process again. This censor was a proven Trump loyalist, who formally worked for one of Trump’s staunched defenders in Congress, Rep. Devin Nunes (R-Calif.). This time the Bolton team apparently had enough, and decided to go forward with publication.

Judge Lamberth ignored the delays Bolton faced and the importance of the first reviewers determination that the book had no classified information. Instead he compared the delay Bolton faced in having his manuscript cleared to the amount of time it takes to get a passport: “Many Americans are unable to renew their passports within four months, but Bolton complains that reviewing hundreds of pages of a National Security Advisor’s tell-all deserves a swifter timetable.”

This reasoning is a green light for the government to run out the clock on freedom of the press. It ignores the law. The U.S. Supreme Court has long held that government-induced delays in exercising free speech rights constitutes unlawful censorship. The Court was unequivocal in establishing the rule: “it is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two may be of crucial importance in some instances.

Delay is tantamount to denial. In a landmark decision ruling on the legality of the prepublication procedures, decided almost 50-years ago, the U.S. Court of Appeals for the Fourth Circuit directly tackled the potential that government officials would use a delaying tactic to undermine the legitimate goals of the prepublication process. In U.S. v. Marchetti the court explained that the government “must act promptly to approve or disapprove any material.” Thus, under the Marchetti precedent the government’s “maximum period” of time for reviewing a manuscript for release “should not exceed thirty days.”

Every government official reviewing Mr. Bolton’s book was (or should have been) aware of these deadlines. The Trump administration decided not to put the resources in place to complete the review of the book in a lawful and timely manner. It was in President Trump’s interest that the book’s official release be delayed until after the impeachment proceedings ended, and ultimately until after the 2020 elections. If the book really contained dangerous information threatening the national security, the administration should have done its job in a timely manner, consistent with constitutional requirements.

Suppressing the speech of current or former government officials is inconsistent with the core mandates of the First Amendment of the U.S. Constitution. The words of the First Amendment are clear. There can be “no law” “abridging the freedom of speech, or of the press” of the American people. Although the district court reached the right judgment in refusing to block the publication of the book, it erred in giving the government the green light to file civil or criminal charges against Bolton.

Stephen M. Kohn is a whistleblower lawyer and a founding partner at the qui tam law firm of Kohn, Kohn and Colapinto. He serves as chairman of the Board of Directors of the National Whistleblower Center. He has successfully represented numerous whistleblowers under national security prepublication review regulations.

Tags Devin Nunes Donald Trump John Bolton

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