In Book Fight, Lawyers Clash on Whether to Fault Bolton or White House
WASHINGTON — Lawyers for John R. Bolton, President Trump’s former national security adviser, seized on a career official’s accusations that the White House improperly politicized a review of his memoir to argue in court on Thursday that the government had acted in bad faith, ending any obligation by Mr. Bolton to submit to prepublication review.
“The government breached” the nondisclosure agreements “by a bad-faith abuse of the prepublication system for the purely political purpose of suppressing the book until after the election because the book reports facts that portray the president in an unfavorable and embarrassing light,” said Michael W. Kirk, one of Mr. Bolton’s lawyers.
But Judge Royce C. Lamberth of the Federal District Court for the District of Columbia appeared skeptical of that argument. In a nearly three-hour hearing, he accused Mr. Kirk of making a “political diatribe” that “really has no place in what we are discussing today.”
The Justice Department has sued Mr. Bolton, seeking to seize his $2 million advance and any future profits from his memoir, “The Room Where It Happened.” The department argues that he breached contracts, which he had signed as a condition of gaining a security clearance, to complete a prepublication review process before disseminating writings about his job.
The government has also accused Mr. Bolton of including classified information in his book and has opened a criminal investigation. But Mr. Bolton maintains that he fulfilled his contractual obligations and disclosed no classified information.
The career official who reviewed his manuscript, Ellen Knight, had worked with Mr. Bolton to remove what she thought was classified and then orally told him that the final version did not have that information in it. But the White House never sent Mr. Bolton a formal written notice saying the review process was over and he was cleared to publish the manuscript.
Mr. Bolton sent the manuscript to Simon & Schuster anyway, and it published the book in June. But in the meantime, Mr. Trump’s political appointees began a second review led by Michael Ellis, a former aide to Representative Devin Nunes, the California Republican who is a close ally of Mr. Trump.
Mr. Ellis had never done such a review before and did not receive training for it after he completed his analysis of the manuscript and said he had found large portions of classified information. In a surprise move this week, a lawyer for Ms. Knight, a longtime government classification expert, sent an 18-page letter to the parties describing the process in great detail and portraying the second review and subsequent litigation as corrupt.
Ms. Knight’s account also complicated Judge Lamberth’s previous actions in the case. In June, when the book had already been printed and distributed but not yet offered for sale in stores, the Justice Department sued Mr. Bolton. It sought to force him to stop any further dissemination, arguing that the book contained grave national security secrets.
As part of those proceedings, the Justice Department met in private with Judge Lamberth, without any lawyer present to critique its arguments. They went over passages that the department said contained classified information, including an exceptionally sensitive category, “secure compartmented information.”
In a ruling in June, Judge Lamberth declined to order Mr. Bolton to somehow stop further distribution of his book, which had been printed. But the judge went beyond the issue before him and said that the book did appear to contain classified information.
Ms. Knight’s account included a detailed explanation of how Trump political appointees did not understand — or chose to ignore — that even though information might be contained in documents that were still classified, the information itself might not actually be classified.
The Justice Department, represented at the teleconference hearing on Thursday by Jennifer Dickey, insisted that the book did contain classified information. But she also offered Judge Lamberth a way to avoid confronting whether he was mistaken in his ruling.
“It is undisputed that Ambassador Bolton did not receive written authorization before he published it, and therefore he has breached his agreement,” Ms. Dickey said, adding, “Our position is clear that the breach occurs regardless of whether there actually was classified information in the manuscript.”
Several questions are pending before Judge Lamberth.
First, Mr. Bolton’s legal team has asked him to simply dismiss the case, arguing that the government had failed to allege all the elements necessary. The first half of the hearing on Thursday was devoted to arguments on this issue, which turned on contract law and a close reading of the wording of the specific nondisclosure agreements that Mr. Bolton signed with the National Security Agency as a condition of receiving access to classified information.
Second, the Justice Department has asked Judge Lamberth to grant a motion of summary judgment, meaning it would win the lawsuit without further proceedings based on the facts that are already in the record. But Mr. Bolton’s legal team wants the judge to first permit them to develop additional facts — such as by telling them what material is supposedly classified and letting them depose government witnesses and read internal documents about the review process.