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A few things to keep in mind for tomorrow's hearing before Judge Lamberth re USG effort to enjoin publication of Bolton's book. 1/ http://www.lawfareblog.com/questions-government-bolton-book-tro-hearings
Lamberth was a bad draw for USG because he is skeptical of judicial deference on classified information (and as a former chief judge on the Foreign Intelligence Surveillance Court he knows a lot about USG and classified info). https://www.politico.com/blogs/under-the-radar/2013/05/judge-courts-too-deferential-on-classified-information-163826 2/
The preclearance process for Bolton seemed highly irregular. The career NSC person (Ellen Knight) concluded after months of work that manuscript contained no classified info. A political appointee (Michael Ellis) then quickly concluded that it did after only a brief review. 3/
Intelligence community chiefs concur that book contains classified info but don't support USG’s claim that it contains Sensitive Compartmentalized Information (SCI). This matters to claim that Bolton breached is contracts, as we explained yesterday. https://www.lawfareblog.com/assessing-governments-lawsuit-against-john-bolton 4/
We speculate that Ellis or others deemed info in book classified or SCI **after** Knight concluded that it contained no classified information. The government’s extraordinary—too broad--discretion to classify based on degrees of “damage” of exposure will be on full display. 5/
There is an open question under a CADC case called McGehee, 718 F2d 1137, how much Lamberth must defer to government’s classification decisions in this prior restraint posture. McGehee said in dicta that USG bears a “much heavier burden than usual” in this context. 6/
Independent of the classified info issues, I don’t see how Lamberth can grant USG’s requested relief (injunction against Bolton and others) since the book is widely distributed globally and an injunction thus cannot prevent the alleged injury (publication of classified info). 7/
Lamberth is very experienced in these matters and is typically tough on the government. Should be interesting to listen to tomorrow at 1 pm. END.
