Yesterday John Bolton’s publishers at Simon & Schuster got a special delivery from Bill Barr, and it wasn’t a card wishing them a Happy Rosh Hashanah.
In the least surprising news ever, the Wall Street Journal reports that the Justice Department has launched a criminal probe to determine if the former National Security Advisor leaked classified information in his bestseller (affiliate link) about his time in the White House. So now S&S and Bolton’s literary agents at Javelin are facing grand jury subpoenas for all their communications with him.
If Bolton was betting that Bill Barr would flinch from appearing to use the DOJ to punish the president’s enemies… he lost. (And he hasn’t been paying attention for the past two years.)
The New York Times, which reported the story simultaneously, notes that some officials at Justice “expressed reservations about opening a criminal case, in part because Mr. Trump’s public statements made it seem like an overtly political act.”
Luckily for the DOJ, U.S. District Judge Royce Lamberth’s already concluded that Bolton’s book does, in fact, contain classified information which jeopardized national security.
“Bolton has gambled with the national security of the United States. He has exposed his country to harm and himself to civil (and potentially criminal) liability,” Judge Lamberth wrote, refusing to enjoin publication but signaling that the government had successfully convinced the court that its classification determination was not simply punitive.
So now Bolton faces the prospect of forfeiting the proceeds of his book and perhaps even going to jail.
And none of this had to happen. If John Bolton had something to get off his chest — and, more importantly, into the public record — he could have said it to Congress. But Congress doesn’t buy books. So instead of testifying in Trump’s impeachment hearing, the former National Security Advisor decided to package his reminiscences of Trump’s “drug deal” to extort the president of Ukraine into ginning up dirt on Joe Biden into a $19.42 hardcover edition. KA-CHING!
Only Donald Trump had other ideas. So after the career pre-clearance officer signed off on Bolton’s manuscript on April 27, the White House launched its own supplementary review in which it discovered that Bolton’s book was chock full of Top Secret information. Surprise!
Or maybe not. Bolton contends that this belated discovery of classified information was a thinly veiled effort to keep his book bottled up until after the election by abusing the classification system. And he’s probably right. But if he wanted to protect himself from prosecution, the remedy was to file a lawsuit, not just forge ahead and publish anyway.
As national security law expert Brad Moss wrote at Lawfare two years ago when the first wave of Trump White House books started to roll out:
Snepp [v. U.S., 444 U.S. 507 (1980)] and its progeny, however, require that the individual must first go through administrative pre-publication review; subsequently file the civil lawsuit; and ultimately receive a favorable judicial ruling before publishing any part of the manuscript originally deemed classified by the government. If the individual does not follow that process, the courts have been clear time and time again that they will side with the government if and when it ultimately takes legal action—whether civil or criminal—against the individual, no matter how flimsy the underlying classification determination may have been.
And the law may suck, but it’s still the law, as Moss’s boss Mark Zaid has repeatedly pointed out on Twitter.
So the Mustache Man is in a heap of sh*t, entirely of his (and his current counsel’s) own making. And if he doesn’t wind up indicted, he’s probably staring down a mountain of legal fees.
You pay your money, you take your chances.
Grand Jury Subpoenas Sent to John Bolton’s Publisher and Agent [WSJ]
Justice Dept. Opens Criminal Inquiry Into John Bolton’s Book [NYT]
Why the White House Can’t Stop Omarosa Manigault-Newman From Talking [Lawfare]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.