US President Donald Trump’s administration is suing former national security adviser John Bolton in a last-ditch effort to block publication of his forthcoming memoir, which contains damaging allegations about Trump’s attempts to get China’s President Xi to help him win re-election.
The Trump administration apparently understands that directly asking the court to bar publication would fail. So instead, government lawyers have invented a series of extraordinarily weak legal claims based on the non-disclosure agreement that all national security officials must sign.
The case should be dismissed posthaste by the US District Court. It is a frivolous lawsuit, in lawyer’s jargon. Worse, it attempts an end-run around clearly established First Amendment law. If I were Bolton’s lawyer, I would seek not merely dismissal but sanctions against the government and legal fees.
To be clear, I have no great sympathy for Bolton personally. He should have testified before the US House of Representatives during last year’s impeachment inquiry, when what he has to say would have mattered.
As you may recall, Bolton engaged in an elaborate fan dance at that time. When the House seemed poised to call him, he said he would not testify. He changed his mind at just the moment when the impeachment trial shifted to the US Senate, where Republicans were in control — and never going to call him. Somewhere along the way, Bolton announced that he intended to write a book.
It wasn’t a good look. Nevertheless, law is law, and free speech is free speech. There are important principles at stake here. As is often the case, when the government comes after a citizen’s free speech, the citizen isn’t a model one.
Such censorship is profoundly disfavoured under the First Amendment. The US Supreme Court refused the Nixon administration’s attempts to impose prior restraints in the case of the Pentagon Papers, and those were classified. Just about the only circumstance in which a court might allow prior restraint would be the publication of the recipe for making a hydrogen bomb.
Because a direct request for censorship would be laughed out of court, the Trump administration lawyers have gotten creative — so creative that they are out to lunch.
Their complaint alleges three breaches of contract based on two standard non-disclosure agreements (NDAs)that national security officials like Bolton sign. In essence, those NDA agreements state that even after leaving office, the officials will submit their publications for the National Security Council to review, lest they contain any classified information.
One of these agreements contains a sentence that says the employee will “assign” to the government any profits from the disclosure of classified information.
The factual problem with the US government’s argument is that, as it acknowledges, Bolton did submit his manuscript for an extraordinarily lengthy and detailed review. A designated NSC official made hundreds or maybe thousands of editorial suggestions, and Bolton complied.
Then, after this months-long process was over, the administration told him a different official would be undertaking a further review at the request of an assistant to the president — meaning it came from a political appointee.
Although the White House has not formally given its approval to Bolton, it is pretty clear that he has not breached his obligation to submit the manuscript for review. What’s more, he hasn’t published it yet, so even if there were a breach, it so far hasn’t happened.
At the legal level, the problems are many. To name just a few:
The US government has invented a brand-new idea that Bolton had a fiduciary obligation to the government to protect the classified information, as though he were a trustee of the government rather than an employee.
Nothing in the contract says so, of course. If the court were to embrace this theory, potentially everyone who signs an NDA could be treated differently from the way their NDAs read. The idea here is to get around the very contract the government is supposedly trying to enforce. Insisting on some separate legal relationship between Bolton and the government is not only preposterous but legally dangerous and would upset settled law.
The US government is also insisting that Bolton tell his publishers not to publish.
In legal terms, this kind of order is called “specific performance.”
But specific performance is not the legal remedy in this situation.
The ordinary legal remedy for breach of contract is simply monetary damages, and those are almost always awarded after the breach has occurred, unless the plaintiff has exhausted all other legal remedies and would suffer irreparable harm by the breach. The government will not be suffering any “irreparable harm” from publication of the book.
Third, the US government is demanding all of Bolton’s royalties or proceeds from the book. But the NDA contract only says that the government would be entitled to royalties from the disclosure of classified information — at most, some small percentage of the book’s overall revenue.
There’s more, but I suspect you’re already getting the flavour of just how outrageous the government’s legal theories are.
Any reasonable court will dismiss them — and soon. Courts have the power to sanction lawyers who waste everyone’s time with frivolous arguments, and to impose penalties including the awarding of attorneys’ fees to defendants who are subject to frivolous lawsuits.
But this lawsuit is even worse than frivolous. It’s an assault on established law and on the US First Amendment. The lawyers who filed it — apparently all political appointees — ought to be ashamed.
Noah Feldman is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President
Former US national security adviser John Bolton's book contains a series of claims about President Donald Trump's time in office, accusing the commander in chief of ignorance of world affairs and putting his own personal interests ahead of those of the nation.
The book, titled The Room Where It Happened: A White House Memoir, is set to be released on Tuesday by Simon & Schuster.
Mr Trump, who tried to block the book, has hit back at Mr Bolton who also served in senior roles under George W Bush.
The claims include:
* Trump pleaded with China's Xi Jinping to help his re-election bid Mr Bolton wrote: "I am hard-pressed to identify any significant Trump decision during my tenure that wasn't driven by re-election calculations."
Mr Bolton said Mr Trump's attempt to shift a June 2019 conversation with Mr Xi to the US election was a stunning move, and wrote that it was among innumerable conversations that he found concerning.
He added that US Congress should have expanded the scope of its impeachment inquiry to these other incidents.
US trade representative Robert Lighthizer, who attended talks between Mr Trump and Mr Xi in Osaka, said the claim was untrue, saying: "Would I recollect something as crazy as that? Of course I would recollect it."
* Trump was unaware the UK was a nuclear power Mr Trump, whose mother was from Scotland and who owns golf courses in the UK and Ireland, reportedly was unaware that the UK had its own nuclear deterrent.
* Trump did not know how the White House operated Mr Bolton said his former boss "saw conspiracies behind rocks, and remained stunningly uninformed on how to run the White House, let alone the huge federal government".
He claimed Mr Trump typically had only two intelligence briefings a week "and in most of those, he spoke at greater length than the briefers, often on matters completely unrelated to the subjects at hand".
Mr Trump responded in a tweet that Mr Bolton was a "disgruntled boring fool who only wanted to go to war".
* Trump thought Finland was part of Russia Mr Bolton's book suggests the president thought Finland belonged to its large neighbour, Russia.
While Russia did conquer Finland in the 1808-1809 war with Sweden, Finland was granted its own parliament in 1906. The Soviets invaded Finland at the start of the Second World War, but this ended with a peace treaty in 13 March 1940.
* Trump backed China's construction of concentration camps for mainly Muslim Uighurs Mr Bolton wrote: "According to our interpreter, Trump said that Xi should go ahead with building the camps, which he thought was exactly the right thing to do."
- Trump linked aid to Ukraine to co-operation in efforts to undermine Joe Biden The book says that the president was determined to undermine Joe Biden, his opponent in November's presidential election, by targeting Mr Biden's son Hunter over his business interests in Ukraine.
Mr Bolton wrote: "He (Trump) wasn't in favour of sending them (Ukraine) anything until all the Russia investigation materials related to (Hillary) Clinton and Biden had been turned over.
Mr Trump was found not guilty in an impeachment trial of wrongdoing over these claims.