The White House is threatening to block John Bolton’s prospective blockbuster memoir about what he witnessed as Trump’s national security adviser, including the Ukraine shakedown scandal.
In a letter to Bolton’s lawyer, dated January 23, the President’s senior records manager, Ellen Knight, claims the manuscript “appears to contain significant amounts of classified information” and “cannot be published or otherwise disclosed without authorization.” She pledges help with proper revisions.
Superficially the missive reads like an impermissible challenge to Bolton’s First amendment rights. But because of his status as an ex- government official — and given the nondisclosure agreement (NDA) he signed on joining the administration in early 2018, his rights are muddied.
His lawyer, Charles Cooper, clearly aware of Bolton’s peculiar vulnerabilities, has been trying deftly and even slyly to insulate his client against censorship, including the possible abuse of security regulations or executive privilege to keep him out of print.
But Cooper’s tactics are experimental, and the looming showdown over the Bolton’s right to publish and the President’s presumed authority to control what he says (or writes) could test our traditional notions of free speech.
The Battle Is Joined:
On December 30, Bolton sent his skeletal manuscript to the White House records office in accordance with his contractual obligation to seek official clearance for anything he might write about his government work.
This requirement is enshrined in Bolton’s entry-on-duty NDA of April 5, 2018. It is backed up by Justice Department prepublication review regulations, which in turn are validated by a Supreme Court ruling, U.S. v Snepp in 1980.
In that case six of the Brethren found that I had published an unapproved CIA memoir in violation of the Agency’s pre-publication screening rules, even though the government had never accused me of publishing any secrets. The Majority also upheld the enforceability of government NDAs in general.
The upshot of the ruling is that members of the national security community must submit all job-related writings to their respective agencies for vetting before showing the material to any outsider, publisher, journalist or family member.
The screening is to determine if the manuscript contains duly classified information. A violation occurs if the author sidesteps the screeners and publishes without their approval.
It doesn’t matter if the writing turns out to contain no secrets. The author can be severely fined for flipping off the screeners – and barred from taking his/her revelations to print.
It is one the few exceptions to what Constitutional scholars call the First Amendment “ban” against prior restraint (i.e. any effort to stop publication before it happens).
Cooper’s Counter Moves:
Bolton’s attorney evidently did his homework. In a letter accompanying Bolton’s manuscript to the White House on December 30, Cooper reminded Ellen Knight that the sole purpose of security screening is to insure against disclosure of properly classified secrets. He expressed confidence there is no such information in Bolton’s draft but acknowledged that screening is required anyway by his client’s NDA.
He was also careful to point out that the manuscript was being submitted solely for a secrets-scrub and, by regulation, could not be made available to “any persons not regularly involved in that process.” If further dissemination occurred, to any other agency or individual, he said, it should only be “to the extent necessary to identify classified information.”
In addition, Cooper advised Knight and her screeners that they were under a deadline “established” in Bolton’s NDA – a window of 30 working days in which to complete their review.
Bolton’s Weasel Room:
Cooper’s reading of his client’s obligations and the clearance process itself was well considered. In effect he put the screeners on notice not to try to whack out anything but classified national security information and not to share screening duties or the manuscript itself with anyone else. He also seemed to be implying that if they didn’t finish their work within 30 working days (starting from the submission date of December 30), Bolton would be free to publish – on February 7.
In emphasizing the limited scope of the screeners’ authority and the limited number of people entitled exercise it, Cooper seemed to be preemptively arguing against any attempt by Trump himself to meddle in the clearance process or to use any rationale other than classification — like executive privilege — to try to suppress parts of the manuscript.
Indeed, since classification is the only possible basis for censorship under Bolton’s NDA, it is conceivable that even if he were prevented for some political reason from testifying before Congress, enough of his manuscript might survive the security vetting itself to speak for him.
That may have been Bolton’s long game from the start – to get clearance for his disclosures on security grounds in order to weaken Trump’s ability to bury him under an executive privilege claim, which can be asserted for even non-classified information.
Not so fast:
That said, Bolton is scarcely home free. If it can be demonstrated that he has shared any part of his still uncleared manuscript with his publisher, or participated in leaking its contents to the press, he will have violated the terms of his NDA and can be prosecuted, just as I was, whether or not any secrets have been revealed.
Remember: The sin lies in the unapproved disclosure itself.
Nor is the 30-day deadline sacrosanct. In the wake of the Supreme Court ruling against me, my attorneys mounted a second lawsuit on my behalf to try to get the courts to prescribe a 30-day limit for any security review. In response, the government argued that the national security community should not be inconvenienced with such deadlines. The lower courts agreed, and the Supreme Court declined review.
Later, in order to appear reasonable, government agencies began including an aspirational 30-day clearance window in prepublication review rules. But the window is not established in law. So, if Bolton and Cooper are hoping to be free on February 7 to move forward with publication, the administration may have some nasty surprises in store.