“The horse, as we used to say in Texas, seems to be out of the barn,” Lamberth said to Deputy Assistant Attorney General David M. Morrell.
But the judge also blasted Bolton’s attorney for not waiting for the government to complete a pre-publication review for classified information before publishing, saying Bolton “didn’t get written authority.”
“Once he invoked that process, he can’t just walk away, and he didn’t tell the government he was walking away,” Lamberth said.
Lamberth said he would rule swiftly after reviewing sealed government submissions of alleged classified secrets in Bolton’s manuscript later Friday. Analysts predicted a split verdict in the legal and political showdown — Bolton may get to release his book but never reap the financial benefits and some publication activity might be barred or delayed.
The government sued Bolton on Tuesday, seven days before the planned June 23 publication, targeting any of Bolton’s profits from the 592-page book, including a reported $2 million advance.
The government did not sue publisher Simon & Schuster but argued in a potentially precedent-setting step for the court to enjoin Bolton, his publisher and bookstores from distribution.
“Disclosure of the manuscript will damage the national security of the United States,” the Justice Department wrote in a 37-page emergency request Wednesday, citing declarations by four of the government’s highest-ranking national security officials. The filing included a sealed submission alleging six examples of book passages requiring protection.
Bolton attorney Charles J. Cooper said in Friday’s hearing that Bolton participated in an “exhaustive, meticulous, deeply searching pre-publication process.” He was informed April 27 by a career White House official assigned to conduct the review, Ellen Knight, that the final version of the book did not contain classified material, Cooper said.
At that point, Cooper argued, Bolton fulfilled his obligation to the government. But Trump and White House aides withheld a final confirmation letter, “attempting to run out the clock before the [November] election,” Bolton said in a declaration. Cooper accused the administration of politicizing and abusing the review process to silence Bolton.
On Friday, Lamberth pressed Morrell on whether President Trump was involved in the process of clearing the book for publication and whether high-level officials normally intervene in classification reviews.
Morrell said he had not met with Trump and knew of no precedent but said the case involved “an extraordinary set of facts.”
“What you have here is a national security adviser . . . detailing or providing details about ongoing policy matters during the same administration in which he served,” Morrell said.
Morrell said Bolton chose to “bail” on the pre-publication process and now must be “creative” to solve “a problem of his own making.”
Cooper argued the hearing was mere “theater” for the government because Bolton is “utterly powerless” to stop a book already made public. More than 200,000 copies have already been distributed around the world, Cooper said. He cited “surreal” images Thursday of a CBS News reporter asking a White House spokeswoman about the emergency request with a book in hand.
Bolton’s liability turns on a complex legal question — whether the manuscript includes properly classified information that Bolton agreed never to disclose without approval, particularly the most sensitive category of top secret “sensitive compartmentalized information” or TS/SCI.
If the judge agrees, the Justice Department also could seek to prosecute Bolton for publishing the book without authorization.
In government filings, Michael Ellis — a former aide to Rep. Devin Nunes (R-Calif.) and the National Security Council’s new senior director for intelligence — said passages of the memoir “reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the United States.”
In a separate declaration Wednesday, 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.”
At the hearing, Morrell acknowledged he could confirm only three of the samples given to the judge were classified before Ellis took over the review. However, Morrell said one of the six samples was TS/SCI.
Cooper called Ellis’s review of the book “very troubling,” noting the official only received authority to classify information March 1 and was not trained until after he completed reviewing Bolton’s book. Cooper added that before Wednesday, “at no point in any of these proceedings lasting over six months did the government even hint there was SCI in this.”
Lamberth said he would need a sealed hearing to evaluate the classified claims and that he would later seek to learn more from Knight.
Even if the book contains properly classified material, Cooper and First Amendment advocates representing U.S. writers, book publishers and news media, including The Washington Post, argued the court cannot prevent the harm the government claims it will suffer by entering a sweeping order barring Simon & Schuster and individual booksellers from sales.
The Supreme Court has never upheld an attempt to stop publication of a work on matters of public importance, First Amendment law specialist Theodore J. Boutrous Jr. said in a friend-of-the-court brief for PEN America, a nonprofit writers group. He added the government has sought to circumvent that doctrine of so-called prior restraint on free speech and free press by asking the court to order Bolton to stop his publisher.
“The President is employing the apparatus of the federal government to punish his political enemies, thwart freedom of speech and pursue his political interests in an election year,” Boutrous wrote.
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” if the injunction is not granted is “literally impossible.”
“Nothing in the Government’s classified, in camera filing will change that fact,” Zaid said. “But absent some cataclysmic event occurring, Bolton is facing loss of millions of dollars.”
Changes demanded Tuesday by the White House were “sweeping” and apparently would eliminate passages describing most of Trump’s conversations with advisers, foreign leaders and numerous others portraying him in an unflattering light, Bolton said in a court filing.
Among its disclosures already reported, the book states Trump asked Chinese President Xi Jinping to help him win the 2020 U.S. election, confirms 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 responded on Twitter by calling Bolton a “Wacko” and claimed that the former close aide’s account is “a compilation of lies and made up stories, all intended to make me look bad.”