But Lamberth noted that it appeared Bolton failed to complete a pre-publication government review and get written authority that his manuscript contained no classified information.
“While Bolton’s unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy,” Lamberth wrote. “For reasons that hardly need to be stated, the Court will not order nationwide seizure and destruction of a political memoir.”
However, Lamberth said a private review of passages the government alleged contain classified information convinced him that Bolton “has gambled with the national security of the United States . . . [and] has exposed his country to harm and himself to civil (and potentially criminal) liability.”
Bolton, a veteran diplomat and security expert, denied that the book contains classified information. He asserted that after a painstaking, months-long review, a career White House official, Ellen Knight, effectively cleared his manuscript in April before Trump political appointees tried to stall it through the presidential election in November.
Bolton, in that case, could have sued the government, Lamberth said, instead of“unilaterally” opting out of the review process.
“This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside [of publicity and sales]; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security,” the judge said.
“Bolton was wrong,” Lamberth concluded.
On Saturday, reaction from Trump was swift. The president — who previously said he thought and hoped Bolton would have “criminal problems” — wrote in a tweet: “Bolton broke the law and has been called out and rebuked for so doing, with a really big price to pay. He likes dropping bombs on people, and killing them. Now he will have bombs dropped on him!”
The judge’s ruling came after the government sued Bolton on Tuesday, a week before the release. The book has been excerpted and widely covered in the news media. The court’s denial applied only to the government’s follow-up request on Wednesday for an emergency injunction blocking the book, based on declarations by four of the government’s highest-ranking national security officials that the manuscript contained classified information. The government’s request included a sealed submission of what it said were six examples.
Legal experts said the ruling in some ways marked a “symbolic” victory for the government as far as stopping Bolton’s book. The government waited till the 11th hour to file suit, and Bolton’s attorney argued Friday that it was political “theater” intended to placate the president.
But Lamberth’s decision also dealt a personal and professional blow to Bolton, while the government continues to litigate to claim any book profits, including a reported $2 million advance, by alleging that Bolton violated government nondisclosure agreements.
Mark S. Zaid, a lawyer who has represented more than two dozen current and former government employees who have sought to publish books, said the likelihood of the government being able to show “irreparable harm” now that an injunction has been denied is “literally impossible.”
“But absent some cataclysmic event occurring, Bolton is facing loss of millions of dollars,” he said.
The Justice Department also could seek to prosecute Bolton for publishing the book without authorization.
The government did not name publisher Simon & Schuster as a defendant but asked the court to enjoin it along with Bolton. In a statement, company spokesman Adam Rothberg said: “We are grateful that the Court has vindicated the strong First Amendment protections against censorship and prior restraint of publication. We are very pleased that the public will now have the opportunity to read Ambassador Bolton’s account of his time as National Security Advisor.”
Bolton attorney Charles J. Cooper said, “We welcome today’s decision by the Court denying the Government’s attempt to suppress Ambassador Bolton’s book.”
Cooper added: “We respectfully take issue, however, with the Court’s preliminary conclusion at this early stage of the case that Ambassador Bolton did not comply fully with his contractual pre-publication obligation to the Government, and the case will now proceed to development of the full record on that issue. The full story of these events has yet to be told — but it will be.”
At a hearing conducted by videoconference on Friday, Deputy Assistant Attorney General David M. Morrell said he did not know whether the president was involved in clearing the book for publication and acknowledged that he knew of no precedent in which high-level officials intervened in classification reviews.
The government acknowledged that after Knight on April 27 said Bolton had completed required edits, national security adviser Robert C. O’Brien Jr., whom Trump appointed to succeed Bolton, ordered an additional review.
O’Brien tapped another new appointee, Michael Ellis — a former aide to Rep. Devin Nunes (R-Calif.) and the National Security Council’s senior director for intelligence — who received his classification authority March 1 and was not officially trained on it until the day after he completed the Bolton manuscript review.
Morrell acknowledged that the government could confirm only three of the six samples it gave the court were classified before the Ellis review.
One of those included a matter described in a government declaration Wednesday, in which Gen. Paul M. Nakasone, director of the National Security Agency, said a limited portion of the draft manuscript “implicates” TS/SCI. He said “compromise of this information could result in the permanent loss of a valuable [signal intelligence] source and cause irreparable damage to the U.S. [signal intelligence] system.”
However irregular the re-review, Morrell said, it was “entirely appropriate” given “an extraordinary set of facts” — a former national security adviser detailing ongoing policy matters during the same administration in which he served.
Bolton in a court filing on Thursday argued that “sweeping” changes demanded just two days earlier by the White House after the Ellis review apparently would eliminate passages describing most of Trump’s conversations with advisers and foreign leaders, and numerous other unflattering Trump portrayals, Bolton said in a court filing.
Cooper said Trump appointees politicized and abused the pre-clearance process, overriding career security officials. The flawed outcome, if it stands, could assist the administration and successors in manipulating officials and keeping them from speaking out when they leave government, legal analysts said.
Among the Bolton book’s disclosures already reported, the memoir states that Trump asked Chinese President Xi Jinping to help him win reelection, reiterates Trump attempted to use military aid to pressure Ukraine on political investigations, and says Trump expressed willingness to halt or obstruct criminal investigations as personal favors to authoritarian foreign leaders.
Trump has previously responded on Twitter by calling Bolton “Wacko” and claimed that the former aide’s account is “a compilation of lies and made up stories, all intended to make me look bad.”