The right to publish, with impunity, truth

Fearing the impact of John Bolton's explosive new book "The Room Where It Happened: A White House Memoir," on Tuesday the Trump administration filed a civil lawsuit against Bolton. The next day the Department of Justice filed an emergency application for a temporary restraining order and asked the court to hold a hearing today. United States of America v. John Bolton, 20-1580 (RCL) (D.D.C., filed June 17, 2020). The DOJ is even mulling over a criminal prosecution against President Donald Trump's former national security adviser, who served in the White House for 17 months.

Based on excerpts of the 592-page book published in the Wall Street Journal, Bolton reveals that at a June 29, 2019, meeting in Osaka, Japan, President Trump asked Chinese President Xi Jinping to help him in the 2020 election by buying more agricultural products to boost Trump's support among U.S. farmers. According to Bolton, Trump regularly does "personal favors to dictators he likes" and he shrugged off China's human rights violations against Uighur Muslims. Bolton writes that Trump said reporters were "scumbags," who "should be executed." Trump added that the DOJ should "arrest" reporters, "force them to serve time in jail and then demand they disclose the sources. The book is full of these unflattering eyewitness disclosures. But Bolton is evenhanded in his criticism claiming that the Democrats were guilty of "impeachment malpractice," despite the fact that he refused to testify at the hearings. This prompted Rep. Adam Schiff to quip that Bolton "may be an author, but he is no patriot."

Bolton, who was reportedly paid a $2 million advance by his publisher Simon & Schuster, is an unlikely First Amendment hero, but the government's actions and threats raise serious legal and constitutional issues. The ACLU immediately issued a statement arguing that the civil lawsuit is "doomed to fail," citing the famous Pentagon Papers decision in which the U.S. Supreme Court rejected the Nixon administration's attempt to block the release of a Defense Department study of the Vietnam War. Ben Wizner, director of the ACLU's Project on Speech, Privacy, and Technology, said "As usual, the government's threats have nothing to do with safeguarding national security and everything to do with avoiding scandal and embarrassment."

But while the Pentagon Papers decision (New York Times v. United States, 403 U.S. 713 (1971)), provides ample support for robust First Amendment protection against prior restraints, the government is likely to argue that the case did not involve a former high-ranking official like Bolton who signed three different non-disclosure agreements under which he agreed to submit any manuscript he might write to pre-publication review to eliminate any classified information and agreed to await "written authorization" before publishing. The courts have held that any government employee who agrees not to disclose classified information, "simply has no first amendment right to publish" such information. Stillman v. CIA, 319 F.3d 546, 548 (D.C.Cir. 2003).

So while the First Amendment will certainly pervade the question of whether the government can succeed in enjoining Bolton's book, the DOJ's request for a TRO may in fact succumb to a far more mundane defense -- the doctrine of laches. Bolton's lawyer submitted his manuscript for review and clearance by the National Security Council on Dec. 30, 2019. On Jan. 23, 2020, the preliminary review indicated the manuscript contained "significant amounts of classified information." But after some editing, by April 27, the government advised Bolton that his manuscript "did not contain classified information." However, on May 7, he was told that the process was "ongoing" and on June 9, a different examiner found that the manuscript did in fact contain "classified national security information."

But the situation is not this simple. The government admits in its moving papers that "[a]s early as January 2020, it was reported that [Bolton] had disseminated copies of his manuscript to members of the press." On June 7, the government learned that Simon & Schuster planned to publish the book on June 23. And on June 10, Bolton's lawyer notified the government in writing that the book had already been "printed, bound, and shipped to distributers across the country." But inexplicably the DOJ waited until June 17 to seek a TRO.

If the protection of "classified national security information" was so important, why didn't the DOJ seek a restraining order five months ago in January when by its own admission Bolton had disseminated copies of his manuscript to members of the press? Or at the very least, when it learned on June 7, that Simon & Schuster was on the verge of publishing the book, why didn't it immediately go to court to maintain the status quo?

An injunction is an equitable remedy and we all learned in law school that "equity aids the vigilant, not the sleeping ones." The doctrine of laches protects defendants against unreasonable and prejudicial delay where a plaintiff exhibits a lack of diligence. Upon learning about the government's request for a TRO, Simon & Schuster pointed out that hundreds of thousands of copies of the book "have already been distributed around the country and the world." (A copy of "The Room Where It Happened" arrived at my doorstep yesterday). Calling the government's lawsuit "a frivolous, politically motivated exercise in futility," the publisher said the injunction "would accomplish nothing."

Ironically, the DOJ's own pleadings concur. In discussing an incidental point, the DOJ volunteered that once disclosed "confidentiality will be lost for all time. The status quo could never be restored." And to drive the nail even deeper into its own coffin, the government added that when that happens "the cat is out of the bag." In addition to the excerpts published in the Wall Street Journal, key portions of the book have been published in the New York Times, the Washington Post, and virtually every media outlet in the United States and around the world. When you combine the gravity of the First Amendment interests at stake with the government's deplorable lack of diligence, causing unreasonable and prejudicial delay, the court has ample grounds to deny the TRO.

What about the government's request to impose a constructive trust on Bolton's profits from the sales of the book. Here again, the DOJ may have handed the judge another reason to deny the TRO: The government has an adequate remedy at law for money damages.

But once again, the First Amendment comes into play. In 1991, the U.S. Supreme Court struck down New York's "Son of Sam" law in Simon & Schuster v. New York Crime Victims Board, 502 U.S. 105. The law purported to seize the royalties earned by convicted felons from the sales of books or movie rights based on accounts of their crimes. The court noted that had the "Son of Sam" law been in effect at the applicable time and place, payments for such works as "The Autobiography of Malcolm X," Thoreau's "Civil Disobedience," and Saint Augustine's "Confessions" would have been confiscated. Because the law was a content-based regulation of constitutionally protected speech which singled out income derived from such expression for a financial burden which is not imposed on other speech or income, it violated the First Amendment. If convicted felons have a First Amendment right to keep their royalties, whatever his politics, so does Bolton.

The final consideration the court needs to consider in deciding whether to enjoin Bolton's book, is the public interest. The DOJ argues that the protection of classified national security information is in the public interest, but totally ignores an equal if not more important fundamental public interest. "Transparency promotes accountability and provides information for citizens about what their Government is doing," President Barack Obama said in 2009. "Openness will strengthen our democracy." The unfettered publication of "The Room Where It Happened" will strengthen our democracy. And it is well to remember that Alexander Hamilton, who was in that room long before Bolton, understood that liberty of the press meant "the right to publish, with impunity, truth" about the government and those who are supposed to serve the people. 