The Justice Department and lawyers for former national security adviser John Bolton faced off for the first time in a court hearing Friday over the Trump administration's push to stop the release of Bolton's memoir next week.
D.C. District Judge Royce Lamberth is considering an extraordinary request from the DOJ that would carry sweeping constitutional implications -- the department has sought an injunction that would bar Bolton's publisher along with thousands of distributors and bookstores around the country already in possession of Bolton's memoir 'The Room Where It Happened' from selling it to customers next Tuesday.
The Justice Department, citing sworn statements from a cadre of the nation's top intelligence officials, has argued the book still contains multiple paragraphs-worth of classified information and could cause "grave" damage to U.S. national security if it is released.
But according to a filing from Bolton's lawyers late Thursday, "over 200,000 copies of the book have already been printed, bound and distributed to booksellers throughout the country, and thousands more have shipped internationally," in addition to dozens of media outlets who received the manuscript earlier this month for review. Additionally, news outlets including the Washington Post and New York Times have already reported on certain details from the memoir, and Bolton penned an op-ed in the Wall Street Journal Wednesday that included material in his book on President Donald Trump's negotiations with China.
Lamberth addressed that point at the beginning of Friday's hearing.
CBS White House correspondent Paula Reid, left, holds a copy of John Bolton's "The Room Where It Happened," as she asks a question of President Donald Trump during a roundtable with governors on the reopening of America's small businesses, in the State Dining Room of the White House, June 18, 2020, in Washington.
CBS White House correspondent Paula Reid, left, holds a copy of John Bolton's "The Room Where It Happened," as she asks a question of President Donald Trump during a roundtable with governors on the reopening of America's small businesses, in the State Dining Room of the White House, June 18, 2020, in Washington.Alex Brandon/AP"The horse, as we used to say in Texas, seems to be out of the barn," Lamberth said before turning it over to the government.
He added that he finds it "difficult" to see how he can do anything about the books that have already been distributed.
Assistant Attorney General David Morrell told the court that they want Bolton to further limit the dissemination of any books, referencing things such as audiobooks.
"This is a problem of his own making. The onus is upon (Bolton) to figure out how to solve it," Morrell said.
Bolton's attorney, Chuck Cooper, opened his remarks echoing the judge's remarks about the horse being out of the barn.
"The speech has been spoken. It can't now be un-spoke," he said.
Bolton has denied that his book contains classified information, noting his months-long deliberations with a senior official on the National Security Council, Ellen Knight, who worked with him on edits to remove classified information and in late April relayed to Bolton, "that's the last edit I really have to provide for you." On May 7, though, Knight informed Bolton that "(t)he process remains ongoing" and that her staff would "reach out as soon as there is an update to provide," according to court filings.
The review was then separately picked up by a separate NSC official, Michael Ellis, who on June 9 came forward with the determination that it included information "classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels." According to the Justice Department, that determination came just two days after Bolton and his publisher announced they'd move forward with releasing the memoir citing what they described as the White House's abuse of the pre-publication review process.
Lamberth asked the government at Friday's hearing how common it is for senior officials to "intervene in the process," given the manuscript had already been found to have no classified information by Knight.
The Justice Department said it wasn't aware of a particular case where officials got involved in this manner, but called this instance as "extraordinary" because Bolton was a senior official with access to national security intelligence.
Later, the judge asked Cooper about whether Bolton had honored the terms of his non-disclosure agreement with the White House.
"Ambassador Bolton fulfilled his contractual obligation, not just in the spirit, but to the letter," Cooper said.
"That's not true," Lamberth replied. "He didn't get written authorization. ... I don't understand why he didn't sue."
Lamberth then added that he didn't understand why Bolton decided to take that risk.
"He can't just walk away and he didn't even tell the government he was walking away. He just told the publisher to publish," Lamberth continued.
Cooper said, "Your honor, he didn't walk away."
But then Lamberth continued, "And now he says too bad, government, nothing you can do."
Cooper argued that there is no dispute that Knight is an authorized official who confirmed the information was unclassified and that while Bolton didn't tell the government what he was doing, the government didn't tell him, "despite his request for more information" that he needed to re-do anything.
In this May 22, 2018, file photo, U.S. President Donald Trump, left, meets with South Korean President Moon Jae-In in the Oval Office of the White House in Washington, as national security adviser John Bolton, right, watches.
In this May 22, 2018, file photo, U.S. President Donald Trump, left, meets with South Korean President Moon Jae-In in the Oval Office of the White House in Washington, as national security adviser John Bolton, right, watches.Evan Vucci/APIn a nearly 50-page memorandum from Bolton's legal team, submitted Thursday night, they allege the government's action to prevent the publication of his memoir is rooted in the "transparent purpose of preventing Ambassador Bolton from revealing embarrassing facts about the President's conduct in office."
"It is difficult to conceive of speech that is closer to the core of the First Amendment than speech concerning presidential actions in office, including actions at the heart of the President's impeachment," the filing says. "And it is difficult to conceive of a greater attack on the First Amendment than the suppression of that speech in the service of a reelection campaign. But that, we respectfully submit, is precisely what is happening in this case."
At Friday's hearing, Lamberth asked, "Is the president, in fact, instructing intelligence officials to designate portions of the book as classified?"
Morrell said he hadn't spoken to the president about it.
They then noted that despite any actions the court may decide to take, the DOJ's request asks 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," Bolton's attorneys said. "The Government cannot plausibly argue that Ambassador Bolton has power to stop the Amazon delivery trucks in America, unshelve the copies in Europe, commandeer the copies in Canada, and repossess the copies sent to reviewers or in the possession of major newspapers."
Separate from the government's motion for a temporary injunction, Friday's proceeding are likely only the beginning of a longer-running court battle. The Justice Department has indicated it will seek to seize any profits Bolton earns from his book, alleging he breached his non-disclosure agreement signed upon entering the White House. Bolton could also potentially face charges under the Espionage Act based on the government's allegations that passages in his book include information that could be designated as high as "Top Secret."