Three Takeaways From The Hearing On DOJ’s Longshot Bid To Block Bolton’s Book

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June 19, 2020 5:29 p.m.

After a two-hour hearing Friday in a case with major First Amendment implications, the Justice Department looked likely to lose the battle over its emergency motion to block the release of John Bolton’s book.

Bolton published the book, which goes on sale Tuesday, without getting a formal authorization from the government confirming it was free of classified information. That was a violation of the non-disclosure agreements Bolton sign when becoming national security advisor, the government alleged in a breach-of-contract lawsuit filed on Tuesday. Bolton has countered that the government slow-walked its review of his manuscript for political purposes.

Bolton has some big problems ahead of him in the separate dispute over whether the government can at least recoup his earnings, but the matter before U.S. District Judge Lamberth on Friday was the extraordinary emergency request the DOJ filed Wednesday. Seeking prior restraint (the legal term for preemptively blocking speech), the government wants an order blocking not just Bolton but also his publisher and third party booksellers from distributing the book.

Here’s a look at how the hearing went.

There Was No Real Argument For How The Judge Could Actually Block Book’s Release

From the judge’s first notable comment of the hearing, it was clear that looming large were the logistical impossibilities of how he’d go about stopping the release of a book that had already been widely distributed.

“The horse, as we used to say in Texas, seems to be out of the barn,” Lamberth said, asking Deputy Assistant Attorney General David Morrell what he should do about the books that had been already sent across the country.

Morrell threw out some outlandish ideas, suggesting that Bolton could get the audiobook version pulled from the Internet.

Ultimately it was up to Bolton to figure out how to stop the publication, Morrell argued, because it was he who let the  “horse out of the barn.”

Bolton’s lawyer Charles Cooper — who has a flair for colorful language in the courtroom — seized on the obvious shortcomings in the DOJ’s prior restraint arguments. He said that both Bolton and the judge were “utterly powerless” to stop the book from coming out.

“What the purpose of this proceeding really is is not truly judicial. It’s theater. It’s to use your courtroom as a stage and to enlist you as a player,” Cooper said.

Bolton’s Lawyer Set The Stage For The Breach-Of-Contract Dispute Looming In The Background

Perhaps because he realized he wasn’t going to need spend much time convincing the judge that the DOJ’s emergency request wasn’t workable, Cooper focused his arguments on the Bolton defense that he didn’t even violate his NDAs in the first place.

This meant several minutes spent parsing the specific language in the contracts, and whether it meant Bolton was actually required to receive a formal written okay from the government before publish the book. (He received an informal green light from the career official initially handling the review, but then a political appointee intervened and now claims that there are still classified materials in the book).

The judge seemed, especially at first, unimpressed with Bolton’s arguments on this point.

“Once he invoked that process, he can’t just walk away, and he didn’t tell the government he was walking away,” Lamberth said.

The defense Bolton offered will be further litigated as the underlying lawsuit unfolds. But right now, it still looks like the DOJ has a very good shot at recouping his earnings, even if its arguments for the emergency request fell way short.

There Was A Lot Of Focus On Michael Ellis’ Intervention

The role played by Michael Ellis — the political appointee who intervened in the prepublication review — came up repeatedly in the hearing. Bolton claims that Ellis got involved in the review because the book would be embarrassing for the President.

Lamberth asked the Justice Department early on if any of the classified information the government is now pointing to was classified after April 27, which is when the career classification expert finished her review.

The Justice Department said that was “partially correct.” However, of the six specific examples the government had provided the court in non-public filings, three were classified before Ellis’ review, one was classified as a result of Ellis review, and it would take additional research to determine when the other two examples were classified.

Cooper, nonetheless, harped on Ellis’ apparent lack of experience in the prepublication process, while noting that he only gained in early March his Original Classification Authority (which gives him the power to deem things classified).

“Not only was it quite fresh at the time he began this process, it seems unlikely in the extreme that he’s undertaken a prepublication review before in that short period of time,” Cooper said.

He also brought up that Ellis had not undergone his OCA training until the day after he completed his review of the Bolton manuscript.

The government urged the judge not to follow Cooper down the “rabbit hole” of whether the timing of Ellis’ mattered.

In a bad sign for Bolton, the judge suggested that he found to be credible some of the other government officials — namely NSA Director Paul Nakasone and NCSC Director Bill Evanina — who filed declarations backing Ellis’ claims.

Nakaone is a four-star general, and “Four Star stars in the military are not shy about standing up to this particular President,” the judge said.

Lamberth then brought up Evanina’s background in the D.C. FBI field office, prompting a digression on whether that office would have done a better job handling the Russia probe than FBI headquarters.

“He comes with a lot of credibility with me,” Lamberth said.

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