Today, June 23, an event will occur which the Trump administration has tried hard to prevent: publication of the memoir of former national security adviser John Bolton.
A federal court judge declined to issue the injunction requested by the Justice Department to stop publication. That was a victory for Bolton.
But the administration may have won a bigger victory. As Judge Royce Lamberth explained, such an injunction was not an appropriate remedy — not because there was no reason to issue one, but simply because it was too late to halt the publication process.
On the contrary, Royce said, on the merits the administration will likely win the case on appeal, and Bolton may well lose whatever profits he makes from the book. Government lawyers argue that the author disclosed classified information without proper clearance, and may have caused irreparable harm to national security. The judge agreed.
But, as Royce explained in his “Memorandum Order,” several criteria need to be met before an injunction can be obtained in cases like this: “a substantial likelihood of success on the merits, irreparable injury if the injunction were not granted, that an injunction would not substantially injure other interested parties, and that the public interest would be furthered by the injunction.”
Judge Royce took the position, based on Supreme Court rulings, that all four criteria must be satisfied to justify an injunction. He ruled that the administration failed to show that irreparable injury would be sustained in the absence of an injunction.
Why is that, if the book really does reveal secrets it shouldn’t? Because we live in the age of the internet. As the judge noted, “A single dedicated individual with a book in hand could publish its contents far and wide from his local coffee shop.”
As it happens, it’s not just a single individual — an Edward Snowden with his Wikileaks — on the loose here. Royce described the situation with biting sarcasm:
“Thousands of copies of the book [have been shipped] to booksellers around the world … Reviews and excerpts are widely available online. As noted at the hearing, a CBS News reporter clutched a copy of the book while questioning the White House press secretary. By the looks of it, the horse is not just out of the barn — it is out of the country.”
Bolton’s attorneys made the very same point in their written presentation, though they made it in his favor: “The Government is asking the Court to order Ambassador Bolton to do something he is powerless to do. The practical reality is that neither Ambassador Bolton nor his publisher, Simon & Schuster, has any ability to stop copies from being sold to the general public on June 23,” they wrote, according to a report on Politico.
However, when it came to Bolton’s “unilateral” decision to proceed with publication before receiving an official letter of permission from the government, Judge Royce leveled a crushing critique.
He accepted the administration’s contention that the author, in “taking it upon himself to publish his book without securing final approval from national intelligence authorities, may indeed have caused the country irreparable harm.”
Bolton defended his action, saying that he had undergone an exhaustive, four-month security review, made numerous changes at official behest, and received verbal assurance that that was all that would be needed. He did not wait for the official letter of clearance, though, and when notified that the administration wanted another review, to which it is entitled, he ignored it.
As Judge Royce caustically noted, “Many Americans are unable to renew their passports within four months, but Bolton complains that reviewing hundreds of pages of a National Security Advisor’s tell-all deserves a swifter timetable.”
Indeed, it is a common occurrence that people are unable to attend weddings of siblings and take care of other urgent travel needs because they can’t renew a passport in time. The federal bureaucracy regulates its own workpace, and the citizenry must go along. Bolton thought the public’s right to know about goings-on in the White House was more urgent, and he couldn’t wait any longer.
In an extraordinarily blunt rebuke, Lamberth concluded that “Bolton was wrong.”
Bolton and his lawyers say the whole story of the extended security review has yet to come out. The have promised that as further details emerge in court, it will be seen that his “crime” was not in breaking confidentiality, and that he has caused no harm and endangered nothing.
His infraction, he asserts, is solely that he has incurred the Trumpian wrath for exposing and disparaging the president’s idiosyncratic approach to foreign policy. It came as no surprise to anyone, including Bolton (as he said in an NPR interview), that his former boss’ reaction would be one of outrage and lawsuits.
Ultimately, the courts will decide whether Bolton is guilty as charged. Will they determine that his behavior was high-handed and reckless? Or that he did what he did because the administration was trying to thwart a truthful telling about “the room where it happened.”
For that we will have to wait. It might take four months or even more.