“At the end of the day, this book is coming out,” Duke Law School professor Stuart Benjamin told TheWrap
The Trump administration’s lawsuit — and the Department of Justice’s Wednesday night request for an emergency injunction — against John Bolton over his upcoming book, “The Room Where It Happened,” is not likely to prevent the book from hitting shelves, according to legal experts.
The lawsuit, filed on Tuesday, argues that Bolton — the former national security adviser to Trump — breached his contractual and fiduciary obligations by revealing classified information in the book and has moved forward with a June 23 publication date without getting a formal sign-off from the government. The Trump administration is requesting that publication be delayed, asking that Bolton be ordered to notify his publisher Simon & Schuster that he’s not authorized to disclose the information contained in his book and have the publisher “dispose” of any copies given to third parties.
Meanwhile, the DOJ’s request for an injunction seeks to prevent Bolton from publishing the book at all, saying the “classified information” included would “damage the national security of the United States,” according to the Washington Post. The request for an injunction also says that if a court enjoins Bolton, his publisher should also be bound by the injunction, too.
But Stuart Benjamin, the co-director of Duke Law School’s Center for Innovation Policy, told TheWrap that it’s “odd” Simon & Schuster is not named as a defendant in the lawsuit, given that the publisher is the one responsible for distributing the book.
“Let’s say that John Bolton, tomorrow, says, ‘Oh my gosh, you’re right. I’m going to delay this by a month. That’s what I want to do.’ He still has to call up Simon & Schuster and ask them to do that. Simon & Schuster might well say, ‘Well, guess what? That book is already going out,'” Benjamin said. “They’re not in contempt of any court if they do that.”
What’s more is that “thousands of copies” of the books have already been printed and “distributed around the country and the world” in advance of the publication, a spokesperson for Simon & Schuster told TheWrap on Wednesday. But in only naming Bolton in the lawsuit, Benjamin said it’s possible that the Trump administration determined it wasn’t going to have much success in outright stopping the publication of the book because of First Amendment protections against prior restraint — a form of government censorship that seeks to prohibit speech or other expressions before they take place, something that was most notably argued over in the Pentagon Papers case. And it’s also possible, Benjamin added, that the Trump administration only named Bolton as a way to get Bolton to disgorge his profits from the book — but that’s not likely to be the administration’s end goal either, he said.
Benjamin narrowed in on a specific paragraph in the lawsuit, which argued that Bolton’s book contained “classified information, in part because the same Administration that [Bolton] served is still in office and that the manuscript described sensitive information about ongoing foreign policy issues.” He also pointed to Trump’s comments on Monday that he considered “every conversation with me as president” to be “highly classified.”
“That is not how we define what is classified,” Benjamin said, adding that there can be plenty of “highly sensitive” information in any administration that’s not actually “classified.” Further, something that is “embarrassing to the president” can’t be considered classified either just because it’s embarrassing to him.
“It’s not clear what they’re really expecting to get out of this lawsuit,” Benjamin said. “I’m befuddled as to what their actual strategy is.”
The lawsuit concedes that Bolton did submit his manuscript for a pre-publication review with the National Security Council, which is a typical requirement for government officials who had access to classified information and are publishing books. But the suit says Bolton became “dissatisfied at the pace” of the review and decided to “take matters into his own hands” by moving forward with a June 23 publication date, rather than waiting for the NSC review to finish.
In an op-ed published in the Wall Street Journal last Wednesday, Bolton’s attorney, Chuck Cooper, said that his client, beginning in January, had worked closely with a senior NSC official for “almost four months going through the nearly 500-page manuscript four times, often line by line” and that Bolton had addressed what appeared to be the final revision by late April. Cooper then said his client never received his final clearance letter and, on June 8, the president’s deputy counsel for national security sent a letter to say Bolton’s book contained classified information and he’d be violating his NDA if he went forward with publishing it.
“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. This attempt will not succeed, and Mr. Bolton’s book will be published June 23,” Cooper wrote.
Theodore J. Boutrous Jr., a lawyer who specializes in the First Amendment, went further to say in a recent op-ed that the lawsuit was a “paper tiger, designed for a showy roar of outrage but with little prospect of any real bite.”
“The complaint on its face demonstrates that this is just the latest example of Trump flouting the First Amendment and manipulating and abusing the national security apparatus for personal and political purposes to hide information of great public concern from the American people,” Boutrous also wrote.
Meanwhile, a spokesperson for Simon & Schuster told TheWrap on Tuesday that the lawsuit is “nothing more than the latest in a long running series of efforts by the Administration to quash publication of a book it deems unflattering to the President.”
Still, Benjamin said it’s possible that a “sympathetic judge” may ask Bolton to hold off for a month so the judge can review the book in camera, or privately, to determine if the text does disclose classified information; but even that is unlikely, Benjamin said, and Simon & Schuster could still decide to move forward with the book anyway if they haven’t been ordered not to distribute it.
“At the end of the day, this book is coming out,” Benjamin said.