U.S. District Judge Royce C. Lamberth denied a Justice Department motion for an immediate ruling, holding that evidence of “unclean hands” by the White House could support Bolton’s defense that Trump aides politicized the review to stall publication and protect the president from embarrassment.
Published in June, Bolton’s best-selling account of his 17 months as Trump’s top security adviser depicted the president as “stunningly uninformed” and said he repeatedly asked foreign leaders’ assistance for his personal benefit. Bolton wrote for example that Trump asked Chinese President Xi Jinping to help him win reelection and dangled military aid to pressure Ukraine to investigate former vice president Joe Biden’s son.
“The government has the power to prevent harm to the national security,” Lamberth wrote at the time. “While the government may not prevent Bolton from publishing unclassified materials, it may require him to undergo a reasonable prepublication review process. The . . . agreements are thus consistent with the First Amendment.”
In an 18-page opinion Thursday, Lamberth reiterated that Bolton could not challenge whether the book actually contained properly classified material. The judge said he had already confirmed that based on closed-door submissions by the government.
Some of the government’s highest-ranking national security officials in court filings said Bolton’s manuscript contained classified information, including in at least one instance material related to Top Secret/Sensitive Compartmented Information — the highest level of classification, concerning intelligence sources and methods.
Still, Bolton has disagreed, alleging that Trump appointees took unprecedented steps to hijack the prepublication review by erroneously claiming the book contained classified information after the National Security Council’s career senior director for information security told Bolton she had finished her own months-long review and declared it did not.
Bolton asserted that the White House sought to block the book until after November’s election.
Justice Department attorneys acknowledged they were unaware of past instances in which political appointees have conducted a second prepublication review. However, they argued that Bolton should have sued the Trump administration on First Amendment grounds, rather than unilaterally publish without approval.
Lamberth said Bolton has a right to legal discovery into the White House’s action. A contrary finding “would create tremendous moral hazard,” giving the government free hand to improperly manipulate reviews and stall or kill future works, Lamberth said.
“The Court does not countenance any individual’s decision to short-circuit prepublication review and publicly disseminate potentially classified information. But nor does it wish to free the government from all consequences for potential misconduct,” Lamberth said, adding that whatever Bolton finds could be factored into other legal remedies sought by the government.
In his earlier ruling, Lamberth made clear he sympathized with the government.
“This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside [of publicity and sales]; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security,” the judge wrote in June, concluding, “Bolton was wrong.”
Spokeswomen for the Justice Department and Bolton declined to comment.
Kenneth L. Wainstein, an attorney for the official who conducted the clearance review, Ellen Knight, wrote in September that she came forward to warn against the “politicization” of government proceedings. He said that soon after requesting a copy of the manuscript on Jan. 6, for example, Trump appointees halted a response to Bolton’s request to prioritize approval of a chapter about Trump’s interactions with Ukraine so that it could be public during the Senate impeachment trial.