Bolton's lost leverage

Bolton's lost leverage
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“The manuscript for this article was not submitted for pre-publication review.” Sorry. Almost 40 years ago, I was a lawyer in the Office of General Counsel of the Central Intelligence Agency, the best job I ever had. I signed a number of documents when I joined, and I believe one of them required me to submit writings to the CIA Publication Review Board. I don’t recall if there was an expiration date.

On the other hand, in submitting for prepublication review the manuscript of “The Room Where It Happened,” John BoltonJohn Bolton Trump ignores science at our peril Bolton defends decision to shutter NSC pandemic office US retaliates with missile strikes in Iraq MORE has entered a process that could result in the government’s confiscation of the entire value of his book, such as it is.

Regardless of whether the staff of the National Security Council deems parts retrospectively to be “Secret” or even “Top Secret,” they have largely unfettered power to hold the book to be in violation of Bolton’s contract and to take his multimillion-dollar advance and all his future royalties. Bolton’s efforts to highlight the strengths and weaknesses in the Trump White House could end up being “pro bono.” The cause would be yet another ghost of the Vietnam War, and a former CIA case officer named Frank Snepp.

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Like many of his colleagues in the Directorate of Operations who served his country in Vietnam, Snepp was concerned by his government’s actions. His book, “Decent Interval,” called special attention to the thousands of South Vietnamese nationals who assisted the CIA and were left behind to be jailed or executed by the victorious North. As an intelligence professional who dealt with classified information every day, Snepp in writing his book took precautions to avoid including any secrets. During the Supreme Court case that followed, Justice John Paul Stevens’s dissent pointed out — to no avail — that the government “conceded that the book contains no classified, nonpublic material.” 

However, the picture Snepp painted was clearly embarrassing to his former employer — and to the White House. The Supreme Court stated that the government was unable to prevent publication (having lost the prior restraint battle in the Pentagon Papers cases) but, because publication without authorization breached the contract Snepp signed as part of his employment with the CIA, a “constructive trust” could be imposed on the proceeds from the sale of the book.

In effect, the government seized the value of the book. The court did not in any way limit the government’s power to redact information or to delay its pre-publication review to miss publishing deadlines.

For Bolton’s review, the White House responded that the process has been handled by “career” officials at the NSC. (White House counsel also stated that he had not “reviewed” the book, which is a technical term in the pre-publication process; he did not say whether he had seen it or read it.) Those officials have threatened retroactively to deem information in the book to be classified at high levels, in effect asserting that the former national security adviser, with decades of experience protecting classified information, did not know the difference when he wrote the book. 

Putting aside for the moment the question of whether there is today a distinction between “political” appointees and other federal officials who have chosen to remain three years into the administration, by submitting his manuscript to the NSC, John Bolton has stepped into a process that he cannot control and that puts all the leverage — and the fate of his book profits — in the hands of his former employer.

Robert Rizzi is a partner in Steptoe & Johnson LLP’s Washington, D.C., and New York offices and co-chairs the firm’s tax practice. He represents prospective political appointees requiring Senate confirmation through the vetting process including Cabinet and sub-Cabinet members, administrators and commissioners of various agencies, and numerous ambassadorial appointees in both Democratic and Republican administrations.