Judge Allows the Release of John Bolton’s Memoir Despite Objection From the Trump Administration

Interviewer: We’re talking with Ben Barry from Martin, Harding & Mazzotti. Ben, reading over this article concerning John Bolton’s new book, which is out. They said defendant 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. They also said that the facts did not control the motion before the court. The government had failed to establish that an injunction would prevent irreparable harm. They have opened up the door to allow the government to go after John Bolton.

Ben: Well, so I think that there’s a couple of things if we unpack that article a little bit. First, I think it’s important, an injunction is when somebody goes to court or an administrative body and says, I want to prevent this person from doing this thing that is going to cause me harm or it stops them from doing an activity that they’ve already been doing. And in this case, the government went to the D.C. District Court and said, “If John Bolton releases this book, it’s going to cause harm.” And that is what the motion is based on, of showing, the government’s showing of harm. And the judge basically says, look, you can’t demonstrate, or you have not demonstrated that the release of this book in fact does harm. And what the court’s decision with respect to that motion for an injunction, what they say is, yes, the government failed to demonstrate the harm that this will do to the administration.

And also, however, the book itself may also have these other consequences for John Bolton, but the court really doesn’t…I don’t think that the court really opens the door. I think it acknowledges that the door has already been opened and we don’t know what’s coming through that door in the following months for John Bolton, but the court does two things. They resolve the issue before the court in favor of John Bolton. Yes, you can release your book. The government can’t stop you based on the things that they’re putting before me today. But also, John Bolton knows that you’ve opened up this door and we don’t know if that’s going to lead to criminal or civil liability later on. Certainly, if there’s a determination that there are security breaches that have been disclosed in the book that could give rise to criminal liability and there’s a whole host of other things that may arise as a result of this. But I don’t think the decision in and of itself opens the door. It just acknowledges that the door has been opened. The court also says that John Bolton may be on the other side of the rainbow so to speak with this book. He may not have violated any other laws. He may not have opened himself up to civil liability and he may be free and clear to enjoy the profits of the book and basically ride off into the sunset. So, it’s not really…I don’t think that the court set precedent here.

Interviewer: Ben, didn’t they rule partly in favor of the release of the book in that they were concerned that…they seemed to indicate, the judge seemed to indicate there was a concern that classified information might have been shared, but that the, you know, excerpts of the book are already out there in the press. Much of it has been shared. The press has some copies of it. Didn’t they seem to be saying that the problem is, is that the cat’s already out of the bag with this?

Ben: That’s exactly right. The justification… Well, let me put it this way. The government’s failure to demonstrate harm was based largely in part on the fact that most of the things that they alleged would cause harm have already been in the public, whether it was because of what John Bolton had put out in advance of his book, or because it had been reported by some other independent source. And so, the government can’t say, “We are being harmed by this secret being released. And therefore, John Bolton’s book should not be published.” They have to show that the publication of the book would in fact be releasing that secret and the harm is soon to come. What the court’s saying is, look, the harm has already been done. It’s already been released. This isn’t anything new. So, the publication of the book is not creating some new damage.

Interviewer: Was that just a mistake by the Trump administration in not filing their injunction or asking to keep the book from being released, that they didn’t do it in a timely fashion, or were they not able to do it prior to this?

Ben: I think that there are a number of reasons why the motion for the injunction was not made sooner. One of those reasons is that Bolton was going through the process of getting the green light from the government, which is generally what you have to do when you work in government and then publish a book that relates to something that was…some information that was acquired during that employment. You have to go through a vetting process, your book and your sources have to be reviewed. And so, I think part of it was Bolton was going through that process. And the Trump administration, I think was probably never going to allow him to get through that process cleanly or in a timely fashion or during a period of time while the Trump administration was still at the helm.

Interviewer: And I know that John Bolton and his legal team have said, it went through the NSA process and was approved by the NSA. It passed their muster. So, they felt that they could move forward. With this statement being said, it seems to have kind of turned what would be a normal…I don’t know what normal is anymore, what a normal process might be into something that is very political. And I think it potentially has taken it out of the realm of the norm. I’m just not sure how to look at this situation right now without a political lens.

Ben: I don’t know that one can. It seems as though, from my perspective, it seems like there’s galvanization on either side. When someone looks at Bolton’s book being published, it seems to me that the sea has kind of parted. You’re on one side or the other. There’s not a lot of in the middle. And I think as a result of that, or I think as a result of kind of the way that the Trump administration has confronted dissidence, it really kind of requires you to choose one side or the other. It’s an all or nothing strategy. And so, I think that’s dissimilar from other books in the past being published by former government employees, cabinet members, things of that nature, that are somewhat critical of the administration which they worked. I don’t think that there was as much vitriol in the press. It wasn’t as political and it wasn’t you’re either with us or without us. You know, if you’re not a Republican then you’re definitely a Democrat, and if you’re a Democrat you’re over here. And if you’re not a Democrat, you’re a Republican and you’re over here. I just think that the process is extremely political. The stakes are much higher because if Bolton’s right about these things and it makes the presidency look so lowly, and if the President is right, it makes, you know, Bolton just a straight liar. There’s no sort of mix of anything. It’s all or nothing.

Interviewer: It looks like a bit of a gamble by Bolton in a sense. The judge scolded him pretty strongly, said the words Bolton was wrong, and he could risk any profits from the book and potentially criminal prosecution. We’ll see how this story continues to unfold. Ben Barry, thank you so much for your insight on this.

Ben: Thank you so much.

Interviewer: Ben Barry is an attorney with Martin, Harding & Mazzotti. Make sure if you have questions, they’ve got the answers. Just give them a call at 1800law1010.com.