Jurisprudence

John Bolton Is Not the Free Speech Hero We Need

His clownish fight with the president is the denouement that the Trump impeachment saga deserves.

Bolton speaks while seated onstage.
Don’t call him a hero, folks. Logan Cyrus/Getty Images

In what may be the stupidest yet of the thousands upon thousands of lawsuits President Donald Trump has triggered, Attorney General Bill Barr’s Department of Justice filed a civil lawsuit in a federal court in the District of Columbia on Tuesday ostensibly seeking to stop publication of John Bolton’s upcoming book, The Room Where It Happened: A White House Memoir. The suit is filed on behalf of “the United States of America,” and it claims that the former national security adviser is in breach of contract and has also violated a government nondisclosure agreement. The suit demands that he complete the government’s official “prepublication review process,” and also “not disclose classified information without written authorization,” and also ensure that his book, which has already shipped, not be published or disseminated, lest its publication cause “damage, or exceptionally grave damage, to the national security of the United States.” This of course comes on the heels of recent ominous warnings from Trump that Bolton—whose book is scheduled to be released next week and who has given an interview to ABC News that is set to be aired on Sunday—is staring down the barrel of “criminal problems” if he doesn’t stop this publishing juggernaut right quick.

Now if all that sounds like “frivolous litigation” to your ears, it’s because when Trump—in his capacity as the boss of bosses of DOJ—uses the state to try to stop a book from being published, well, that would be prior restraint. As the Supreme Court noted in 1971 when it allowed for the publication of the Pentagon Papers, “Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity.”

There is the additional problem that the Trump administration has been trying to force all sorts of former White House employees, most notably Omarosa Manigault Newman, to comply with laugh-out-loud, unenforceable, and overbroad NDAs. These efforts may have worked to protect Trump on the set of The Apprentice, but they don’t work when you are the head of the executive branch and the NDA covers urgent matters of state. The claim here, that Bolton should have waited out the monthslong clearance process, is belied by the fact that he did.

The suit itself concedes as much: “On or around April 27, 2020, [senior director for records access and information security management at the National Security Council Ellen] Knight had completed her review and was of the judgment that the manuscript draft did not contain classified information. Ms. Knight informed NSC Legal of the status of the review.” So the person in charge of reviewing the book gave it the all-clear. It was only when the administration went in for another round of review that the top political appointee at the NSC and Bolton’s replacement, Robert C. O’Brien, ordered the holdup to begin again.

Further eroding its feeble foundation—and making it reasonable to ask whether this is even a sincere attempt at prior restraint or just the DOJ once again doing everything in its power short of arresting his enemies to appease the president—is the absence of the publisher as a defendant and the DOJ having declined to even request a restraining order. This isn’t really an attempt to halt a book; it’s an attempt to bully Bolton into somehow taking it all back under the threat of having to pay massive legal fees and losing income from the book’s publication. As the Knight Foundation was quick to point out, this is just further abuse of an interminable “prepublication review” regime under this administration that has come to serve as de facto prior restraint.

So what should we make of this pileup of contradictions in the DOJ’s eleventh-hour cameo debasement in civil court on the president’s behalf?

Attorney Bradley Moss asserts that the suit is a “straight civil breach of contract” case against Bolton for having allegedly failed to comply with the prepublication requirements—though, again, the suit at least appears to concede Bolton’s initial compliance.* If the DOJ prevails, Bolton’s profits would wind up in the U.S. Treasury. The DOJ shows some clever cheek by laying claim to “all royalties, remunerations and emoluments”(!) resulting from any Bolton disclosures that are “[in]consistent with the terms of the [NDAs].”

The posturing over money, of course, is just that. This suit, like virtually all of Trump’s countless previous failed lawsuits, is really about vindictiveness. The caption even included Bolton’s home address, when it’s apparently more customary in this judicial district to include the lawyer’s address instead of the defendant’s. That childish rage is why Trump is now threatening to sue his niece Mary to keep her tell-all—due out in July—in the vault as well. For Trump, “winning” has only ever been about his opponents losing. Trump’s Page Six, professional wrestling worldview really shines through here, though, with Barr eagerly gooning it up as if he were Trump’s Captain Lou Albano.

The prior restraint threat is nothing more than kayfabe, but the humiliation of the Department of Justice is once again exhaustingly real. The marks it will leave will remind us of how many folding chairs DOJ took to the head these four long years. The fact that Trump has a whole privately orchestrated law firm under Bill Barr willing to work the levers at taxpayer expense just makes it impossible for him to stop now.

Let’s be honest: It is a bitter pill to swallow to now be rooting for John Bolton, the man who opted for cashing in over testifying during the impeachment, when his revelations about Trump’s misdealings with foreign governments may have made a real difference. But here we are, not just rooting for the grifter-with-the-mustache against the grifter-with-the-hair, but also profoundly anxious at the fact that the Justice Department as well as an array of federal prosecutors have cheerfully lined up behind Barr to go after another one of Trump’s foes. As John Dean—who knows a thing or two about abuse of power in the executive branch—said, “this is about Barr using the Justice Department as Trump’s law firm.” That we’ve all gone numb to Barr’s willingness to perform precisely this role for some time now makes it all the more troubling. Barr’s gone from Trump’s personal prosecutor general to his bagman in the blink of an eye.

Further contributing to that pill’s bitterness is that this is playing out months after Bolton’s testimony could have been provided to the full Senate at Trump’s impeachment trial, which feels like a century ago but in reality begat this historically wretched year. Bolton’s book jacket tauntingly claims that it’s “game on,” but the real game was played, and lost, in January. Bolton didn’t even bother to show up or take sides. It’s painful to concede that Bolton’s story is still worth hearing. Perhaps, though, if the government ultimately gets to keep Bolton’s profits, it will all eventually add up to a ridiculous booby prize for the whole country.

Correction, June 17, 9:55 a.m.: This post originally misidentified Bradley Moss as a staffer at Above the Law.

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