Former National Security Advisor John Bolton has pledged to publish his new scrapbook, The Room It Happened In: A Memory of the White House, despite the lack of administration approval prior to publication. This includes an ABC special this weekend to kick off its release. The move is extremely risky and the law is not on the side of Bolton, who could potentially lose not only his winnings but also his freedom in such a dispute.
The chicken game between Bolton and the White House intensified yesterday when President Donald Trump and Attorney General Bill Barr discovered that the book contained not only privileged information, but also classified information. Barr also confirmed that Bolton did not complete the required pre-release review.
I share the concern about the motivations behind this slow review. The book is obviously going to hurt Trump a lot right before the election. I have always spoken out against such scrapbooks, especially those that rush to print during an ongoing administration. It's a betrayal of a president and an understanding of the confidentiality they need to function. However, the pre-release review process should not be used to protect a president from embarrassment or political liability. The problem is that it is no longer just about privileged information and Bolton agreed to complete that process in his NDA. Put simply, that was the price of the National Security Advisor ticket.
For this reason, the reference to classified information is a game changer. The courts turn heavily to the executive for such classifications. In addition, as Barr noted, discussions of a president with the leaders of foreign nations are usually classified. After all, the primary purpose of the nondisclosure forms is to prevent such disclosures. I have signed this form several times over the past 30 years due to my work on classified cases. It's far-reaching and clear. You sign the right to publish pending review and the changes indicated in the review prior to publication.
First and foremost, Bolton could face an injunction to prevent publication. As I mentioned earlier, I find the claim of classified information surprising as no injunction was pursued when this book was printed and stored in warehouses. If the book contained clearly classified material, why would the government risk exposing it in millions of copies lying around in barely secure storage? However, given the testimony of Bolton and his publisher Simon and Schuster, the government could certainly apply for release now.
Second In 2016, former Navy Seal Matt Bissonnette (under the pseudonym Mark Owen) wrote “No Easy Day” about the attack that killed Osama bin Laden. He had to pay the federal government $ 6.8 million to avoid criminal prosecution. In Snepp against the United States, 44 US 507 (1980), The Tribunal examined a book by Frank Snepp, who signed an NDA as part of his employment with the CIA. He then published a book on CIA activities in South Vietnam without first submitting his manuscript to the agency for review. A lower court denied Snepp royalties from his book because he had not received approval. The Supreme Court upheld this ruling and began a discussion that could portray Bolton in the same way as any person violating the essential trust required of such officials:
Snepp's employment with the CIA was associated with an extremely high level of trust. In the opening sentence of the agreement he signed, Snepp expressly acknowledged that he was entering into a relationship of trust. The fiduciary agreement specifically provided a requirement not to post any information related to the agency without submitting the information for approval. In court, Snepp found that – after assuming this obligation – he had been “assigned various trusts” and that he was given “more frequent access to classified information, including information on sources and methods of information”. 456 F. Supp. at 178. (footnote 6) Snepp published his book on CIA activity based on this background and exposure. He has deliberately and clandestinely violated his obligation to submit all material for review prior to publication. He exposed the classified information entrusted to him to the risk of disclosure.
The Court added: “Aside from the plain language of the agreement, the nature of Snepp’s obligations and access to confidential sources and materials could create a relationship of trust. Few types of government employment involve a higher level of trust than that of a CIA employee on Snepp's duties. “The obvious example of a higher level of trust would be the actual national security advisor himself.
There is also the question of possible criminal liability. This threat is less pronounced, but not insignificant. This would be knowingly releasing classified information if Bolton were informed of the content and published anyway. It's also noteworthy that Barr is known to be especially protective of privileged and classified information. Bolton has not completed the process and, according to yesterday's statements, failed to comply with the removal of the material. We have not seen such law enforcement in previous cases like the publication of “No Easy Day”. I still consider this threat to be less acute under the Espionage Act, but it could prove a test case for such an application to an NDA violation.
Bolton has a strong attorney in Chuck Cooper who has a lot of experience and intestinal strength. However, after yesterday he should be extra careful. After the President and Attorney General publicly state that the book contains classified information, it can be difficult to back off from responding aggressively to Bolton. Making such a public statement and then doing little would be seen as undermining the NDA in the future. Bolton has the unfortunate distinction of now being a crucial case in the government's control over such information.
Barr's words contain a clear threatening element that the process is not yet complete. Bolton may have got just enough rope to hang himself if he unilaterally abandons the process. It seems to me that this process has been slow. However, there is no guarantee that the process will be completed quickly. On the contrary, the process itself is seen as a speed boost for officials who wish to benefit from a scrapbook before a term as president expires. Complaining about the speed of glaciers is a bit like complaining about Washington weather.
As the earlier book controversy suggests, this will be a "No Easy Day" for Bolton.