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Saturday, June 20, 2020

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Posted by Howard Wasserman on June 20, 2020 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


With regards to the constructive trust, if the publisher transfers the advanced funds and royalties to a bank in the Netherland Antilles, or some other location that does not have an extradition treaty with the USA, and Bolton declares personal bankruptcy, does he get to keep the money?

Posted by: Paul Sonnenfeld | Jun 20, 2020 9:44:29 PM

One issue that was shoved under the table is whether the material that the government labelled "classified" is properly classified. Judge Lamberth noted that he was relying on an ex parte, in camera presentation by the government that there's classified material in there... which, at least on this record, is classified material not known as classified to the NSC reviewer who had worked for months on the review. Unfortunately, this is not an exam hypothetical regarding this NSC staff; Lt Col (P) Vindman has testified under oath in public to apparent misuse of classification to "[c]onceal violations of law, inefficiency, or administrative error" and/or "[p]revent embarrassment to a person, organization, or agency," and we don't know what was identified as such in the closed sessions.

So here's an exam-question issue at the boundaries of Snepp: What result if the information that triggered the review/nondisclosure requirement was not properly classified? That is, is the enforceability of the various "contracts" tied to the material actually being "expected to cause [required level of] damage to the national security that the [original classification authority] is able to identify or describe"? It seems to me that Judge Lamberth rightly evaded this First Amendment quagmire at this stage of the proceedings, but he will not be able to do so on the merits for imposing the constructive trust.

Posted by: C.E. Petit | Jun 20, 2020 1:56:05 PM

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