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Thread with a few thoughts on DOJ's request for a TRO/PI to block publication of Bolton's book....Seems like a rear-guard action at this point, especially given what appears to have been a coordinated effort by S&S to get the juicy bits out there today https://www.politico.com/news/2020/06/17/john-bolton-book-trump-china-326563
DOJ going to have to overcome pretty strong claims of futility by Bolton's lawyers, previewed here: https://www.courtlistener.com/recap/gov.uscourts.dcd.219024/gov.uscourts.dcd.219024.3.16.pdf So this is likely to become a battle over the proceeds from the book rather than whether the book gets out.
One of the most interesting details in this saga: Ellen Knight, the NSC staffer who handles reviews like this and spent more than four months working with Bolton on edits allegedly "signed off" on a version of the book on April 27, according to Bolton lawyer Chuck Cooper.
However, seems like an informal OK and Bolton was to await a formal letter, which never came. Meanwhile current National Security Adviser Robert O'Brien decided he thought there was still classified info in the book. An aide to O'Brien, John Ellis, then took five weeks to read it
Now, Knight is reportedly retaining a lawyer https://twitter.com/kpolantz/status/1273416476494610437 Does she think she was overruled for some improper reason?
Also some have made a big deal of the fact that DOJ didn't sue S&S, but the filing Wednesday makes sweeping claims that the court can not only enjoin the publisher but even individual bookstores from distributing the book. (DOJ does not appear to argue that about news outlets.)
If it didn't appear the cat was out of the bag at this point (I'm more a dog person), the main issue in the case at this point would be whether a prior restraint is appropriate and against whom. DC federal courts haven't dealt with classified publication cases much recently
The DOJ brief today says the DC Circuit ruling on this in a 1983 case involving ex-CIA officer Ralph McGehee was wrong when it suggested the governments has 'a much heavier burden' to restrain publication than just recoup ill-gotten gains https://casetext.com/case/mcgehee-v-casey
Problem with that argument is that if Judge Lamberth finds that language is binding precedent, he's obliged to follow it and only DC Circuit en banc or #SCOTUS could overturn it. Seems unlikely Lamberth would buck the circuit on that to issue what seems like a futile TRO.
Nevertheless, a line up of major national security brass to claim potentially serious damage or worse from stuff in the book. Interestingly, no submission from O'Brien, though. Reluctant to depart from usual practice that NSA doesn't testify?
It seems like the current issue has less to do w/the content of Bolton's manuscript than with some classified intelligence-gathering capability...allegedly revealed by what's in there. But whatever is in there is on many newsdesks around town and likely in thousands of bookstores
So, seems like the most benign spin on the litigation is that DOJ and USG are trying to preserve its ability to enforce classified-info NDAs in the future without being accused of double-standards exempting ex-senior officials.
More nefarious spin: it's all hackery aimed at extracting a pound of political flesh for an angry president. And, of course, many players involved now with what could be varied/mixed motives. ENDS
