Questions for the Government in the Bolton Book TRO Hearing(s)

Yesterday we analyzed the government’s lawsuit that seeks to enjoin John Bolton (and, as a practical matter, his publisher and booksellers, too) from publishing or selling his book, The Room Where It Happened, and to recover any profits he receives from the book.  An hour after we posted that analysis, the government filed an emergency application for a temporary restraining order (TRO) and motion for preliminary injunction, asking Judge Royce Lamberth of the U.S. District Court for the District of Columbia to enjoin publication and sale of the book before it would otherwise become available to the public next Tuesday, June 23.  Judge Lamberth will convene a hearing on the motion tomorrow (Friday) at 1:00 p.m.  The public can listen in at 888-636-3807; Access Code 6967853.  (Presumably, Judge Lamberth might also hold a classified, ex parte hearing, where the government can present its classified evidence, but he hasn’t yet announced that.)

There’s much to say about the TRO application, and the declarations of several government officials submitted in support of it.  But because time is short, this post will discuss an important framing issue—Judge Lambert’s power to second-guess the classification decisions of the Trump administration—and then raise questions we think Judge Lamberth should consider at the hearing tomorrow.

Background

The government’s effort to enjoin publication of Bolton’s book and take away the profits from book salesdepends upon the assertions that Bolton breached contractual agreements he signed as a condition of his access to classified material when he was National Security Advisor. Two primary theories undergird that assertion. 

The first theory is simply that the book contains classified information; that Bolton promised, as a condition of access to such information during his time as national security adviser, that he wouldn’t disclose any classified information he learned on the job without the authorization of the NSC; and that therefore the court can enforce that promise by enjoining publication of the classified information. This is a remedy that would raise much more serious constitutional problems if applied to a member of the public who didn’t have such a contractual obligation to the federal government of nondisclosure.  For purposes of this first theory of liability, the government contends that the book manuscript contains information that’s been classified at the CONFIDENTIAL, SECRET and TOP SECRET levels pursuant to the governing 2009 executive order  (The different levels are distinguished by the degree of possible damage that disclosure of the information might cause.  For example, a classifying official can designate information “Top Secret” only if it’s reasonable to believe its disclosure would cause exceptionally grave damage to national security, whereas information can be classified as “Secret” if the reasonably expected damage to national security is only “serious.”) 

The government’s second theory is that, as a condition of access to the very most sensitive forms of classified information, called SensitiveCompartmentalized Information (SCI), Bolton also made a process-based promise. That promise entailsnamely that he wouldn’t publish any writings that contain or that describe activities that “relate” to SCI or that he has reason to believe are derived from SCI, until he receives written authorization from the NSC to publish such writings. The written NSC authorization would come after  a “prepublication review” process that’s ostensibly designed to ensure that SCI isn’t disclosed.  (The intelligence community defines SCI as “[a] subset of [Classified National Intelligence] concerning or derived from intelligence sources, methods or analytical processes that is required to be protected within formal access control systems established by the [Director of National Intelligence].”  It is actually a subset of TOP SECRET information and therefore is commonly referred to as TS/SCI.)  The NSC hasn’t yet given Bolton any such written authorization.  And in a declaration filed in support of the TRO yesterday, the NSC’s senior director for intelligence, Michael Ellis, asserts that the manuscript actually contains information classified as TS/SCI that requires the NSC to commence an additional review of the manuscript.  If he’s right about that, and if the standards for determining SCI pass First Amendment scrutiny, then Bolton does have a legal obligation not to publish the book as a whole until obtaining the written authorization.

Ellis’s announcement contrasts with an earlier NSC review of a version of Bolton’s manuscript. From January through May 7, 2020, Bolton engaged in an elaborate four-month “iterative” review process with Ellen Knight, who leads the National Security Council’s Records Access and Information Security Management Directorate (RAISMD), the entity that has primary responsibility for such preclassification reviews within the NSC.  After Bolton made many cuts to his manuscript, the government has acknowledged that on Apr. 27, 2020that the revised manuscript draft didn’t contain any classified information at all—let alone any SCI.

At that point, according to the government, National Security Advisor Robert O’Brien reviewed the manuscript and “concluded that it still appeared to contain classified information.”  O’Brien then asked Michael Ellis to conduct a further review of the manuscript.  Ellis’s review lasted from May 2 to June 9.  On Tuesday, June 16—the same day the government sued Bolton—Ellis wrote to Bolton that the manuscript “still contains classified information” and that the NSC therefore would not provide Bolton authorization to publish it.  In his declaration filed with Judge Lamberth yesterday, Ellis goes further:  He contends that the manuscript due to go on sale next Tuesday contains information classified at the CONFIDENTIAL, SECRET, TOP SECRET and TS-SCI levels.  His justifications for that conclusion are not public—they’re contained in a separate classified declaration he submitted to the court.  In further declarations in support of the TRO application, three other administration officials also assert or suggest that the manuscript contains classified information:  John L. Ratcliff, the director of national intelligence; William R. Evanina, the director of the national counterintelligence and security center; and […]

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