John Bolton’s Silence — Here’s how he could lawfully break it

In the New York Times this morning, we wrote an op-ed that discusses the prepublication review of John Bolton’s memoir and its implications for the ongoing debate about President Donald Trump’s decision to withhold security aid from Ukraine. We argue that the prepublication review system gives the government far too much power to suppress speech that is of value to the public, and that, if the past is any guide, the government is likely to try to exploit this power to delay the publication of Bolton’s book, and to force Bolton to scrub from the book facts that the White House views as inconvenient. The arguments we make about the prepublication review system track the arguments that the Knight Institute and ACLU make in a constitutional challenge pending before a district court in Maryland.

As one of us explained on Twitter a few hours ago, however, the fact that Bolton’s book is in the hands of the censors does not mean that Bolton could not share his story with the public now, if he wanted to—or that he could not have shared it last week, when it might have influenced the Senate, or six months ago, when it might have influenced the House.

If he wanted to, Bolton could this afternoon release a version of his story that avoided details that could plausibly be characterized as classified. He could do this in writing or in a press conference or interview. Technically, he would have to submit even this version of his story for prepublication review, to the extent he prepared notes for it, but his failure to submit wouldn’t result in significant legal exposure. The government couldn’t prosecute him for disclosing classified information if he hadn’t disclosed classified information. It couldn’t seize his proceeds—a la U.S. v. Snepp—if there were not any proceeds to seize. It could suspend or revoke his security clearance, but, practically speaking, this is probably the most it could do.

Another option for Bolton would be to file a lawsuit to force the government to review his book quickly. Bolton could do that this afternoon. These kinds of lawsuits are routine and not particularly complicated. And Bolton would have a strong case that time is of the essence, that the public interest in his story is immense, and that the delay in review is causing him irreparable harm.

There’s no doubt that Bolton would face serious criminal exposure if he simply published his book without waiting for a green-light from the censors. The National Security Council has already indicated its view that the book “appears to contain significant amounts of classified information,” including information “at the TOP SECRET level.” Particularly given the players involved, it doesn’t seem inconceivable that, if Bolton published his book without authorization, the Justice Department would   file charges against him under the Espionage Act.  (That Act makes it a felony for government insiders to communicate information relating to the national defense.) But Bolton has other options. It seems reasonable to ask why he’s not taking advantage of them. 

About the Author(s)

Jameel Jaffer

Inaugural Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos. Member of the editorial board of Just Security. Follow him on Twitter (@JameelJaffer).

Ramya Krishnan

Staff attorney at the Knight First Amendment Institute at Columbia University - Follow her on Twitter (@2ramyakrishnan).