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.  It asked 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 1:00pm ET.  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 sales depends upon its 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 merely “serious.”)

The government’s second theory is that, as a condition of access to the very most sensitive forms of classified information, called Sensitive Compartmentalized Information (SCI), Bolton also made a process-based promise. That promise was 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 Bolton’s book actually contains information classified as TS/SCI.  If Ellis is right about that then Bolton likely has a legal obligation not to publish the book as a whole until obtaining the written authorization.

Ellis’s announcement that he discovered classified information in his recent prepublication review contrasts with an earlier NSC review 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 prepublication reviews within the NSC.  The government has acknowledged that on April 27, 2020, after Bolton had made many cuts to his manuscript, Knight concluded that 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 his book.  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 Paul M. Nakasone, the director of the national security agency.

Review for Proper Classification

As we explained in our earlier post, Judge Lamberth can enjoin publication of the book only if, at a minimum, he concludes that it contains information that the government has properly classified.  Although the burden is on the government to demonstrate proper classification, courts are usually very deferential to the national security assessments of government officials.  The basic test, under an important 1983 D.C. Circuit decision called McGehee, is whether the reasons offered for the classifications “are rational and plausible.”  That is not typically a hard standard to meet, and thus it’s virtually unheard of for a court to find that the government has classified information improperly.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors.  They include:

● Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public. Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.

● The decision to classify material here appears to be highly irregular. The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information.  A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review.  It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information.  At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.

● The D.C. Circuit in McGehee stated in dicta that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one.  Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Questions for Judge Lamberth to Consider

Judge Lamberth will likely have many questions for the government for purposes of its TRO motion.  The following are the ones we think are among the most important.  We’ll start with questions about information in the book that Ellis alleges is classified below the SCI level; then address his assertions about SCI; and, finally, identify some other important legal questions.

Questions About Information in the Book that Ellis Alleges to be Classified as CONFIDENTIAL, SECRET, or TOP SECRET (but not SCI)

McGehee teaches that Bolton’s nondisclosure agreements only prohibit him from unauthorized disclosure of information that an authorized government classification authority has actually classified.  It is not enough that the information might be “classifiable” if it hasn’t been classified.  That’s why Ellis attests that the manuscript contains information that has in fact been classified. Which raises the following questions that Judge Lambert should ask the government tomorrow:

● Did Ellen Knight and her team consult with officials in the offices of the National Security Advisor, the DNI, the NCTC Director and the NSA Director, before Knight reached her conclusion on April 27 that the manuscript contained no classified information?

  • If not, why not?
  • If so, who did they consult and what was the nature of the input of the parties consulted? Did Ellis offer any input?
  • If she and her team did consult with such officials, how could Knight have reached her conclusion about the absence of classified information in Bolton’s manuscript in light of the assertions that Ellis, Ratcliffe, Evanina and Nakasone are now making that the book contains classified information?

● Did any classification authority classify the relevant information in Bolton’s book?

  • If so, who classified it and on what ground? (Will those officials testify about it?)  Was the information marked as classified in any documents where it appeared?
  • If so, why did Knight and her team not realize that the manuscript contained classified information after their months of meticulous review?

● If, on the other hand, Ellis or someone else in the government classified this information for the first time after Knight reached her conclusion on April 27:

  • Why didn’t Knight herself, who is an “original classification authority,” do so, or recommend that that information be classified? (Will she testify about that?)
  • Why wasn’t it classified earlier?
  • Who classified the information (we suspect it was Ellis) and will that person testify?
  • Section 1.1(b) of the executive order provides that “[i]f there is significant doubt about the need to classify information, it shall not be classified.” Did the person who classified information after Knight’s review apply that standard?
  • When, if ever, did Ellis receive his training in classification (see section 1.3(d) of the executive order). Was the training requirement waived for him and, if so, why?

Questions About Information in the Book That Ellis Alleges Is Classified as TS/SCI:

If Judge Lamberth concludes that the manuscript doesn’t contain any information classified as TS/SCI, then there would appear to be no basis for the NSC’s SF-4414 prepublication review to continue further, and he should reject the government’s theory of liability based upon breach of Bolton’s agreement with the government by premature publication of the book without NSC authorization.  This raises the following questions about Ellis’s assertion that the manuscript contains TS/SCI:

● Ellis is careful not to claim that he has authority to classify anything as TS/SCI—he writes only that he “can assess” whether information is “currently and properly” classified as SCI. In that case, who is it that allegedly classified some information in the book as SCI—and when?

  • Specifically, was the information in question classified as SCI before or after Knight completed her review on April 27?
  • If after April 27, why and by whom? (Shouldn’t that person have to testify?)
  • If before April 27, why didn’t either Bolton or Knight and her team realize that the alleged info had been classified SCI—something that presumably would have been fairly obvious during the months-long process?

● If some of the information has been classified as SCI, what is the basis for that classification (something the government would almost certainly answer only in a classified hearing)?

● Why have the senior intelligence officials who’ve filed declarations with the court only claimed (at most) that the information in the manuscript is classified (in DOJ’s words, the “conclusion that the draft still contains classified information is shared by Mr. Ratcliffe, Mr. Evanina, and Gen. Nakasone” (emphasis added)), and have not further attested that it includes TS/SCI?

  • In paragraph 8 of his declaration, Nakasone asserts that the draft contains classified information; but in paragraph 9 he states that the information supporting his determination that the manuscript contains classified information “is highly classified and extraordinarily sensitive,” and adds that “a portion of the manuscript” “implicates” SCI. What’s the distinction between information that is SCI and information that “implicates” SCI?
  • If an authority did classify some of the information as TS/SCI, is Judge Lamberth satisfied, after his de novo review, that the reasons for that classification “are rational and plausible” (and, possibly, whether they satisfy a higher standard of review under McGehee (see below)?

 Legal Questions

● Under Executive Order 13526, government determinations of classified information must be predicated upon determinations of degrees of possible “damage to the national security.” In a related context in McGehee, the D.C. Circuit worried that a classification standard “might be excessively vague,” but satisfied itself that the CIA in that case used more precise criteria than degrees of damage to national security in its prepublication review practice.  Did the NSC in the Bolton preclearance review use more precise criteria than simply assessing the degree of damage to national security?  If so, what were they?

● Dicta in McGehee suggests that there might be a “heightened standard” of review for classified information determinations in a prior restraint context. Is that the right reading of the First Amendment?  Should the First Amendment also inform Judge Lamberth’s scrutiny of the unusual preclearance review process in this case?

● Section 1.7 of Executive Order 13526 provides that information may not be classified in order to, inter alia, conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; or prevent or delay the release of information that does not require protection in the interest of the national security. Did any such considerations affect the decisions to classify in this case?  For example, Bolton alleges in his book that President Trump is ignorant of U.S. foreign policy, sees foreign policy through a re-election lens, and the like.  Did those allegations bear on the decision to classify?

● The government argues that pursuant to Federal Rule of Civil Procedure 65(d), Bolton’s publisher, Simon & Schuster, would be subject to the injunction, as would “[c]ommercial resellers further down the distribution chain, such as booksellers,” once they have actual notice of it. Why does the government believe that such an injunction would be constitutional as applied to those parties, given that they didn’t have a contractual relationship with the government?

● In order to obtain a TRO or preliminary injunction, the United States would have to show that it would otherwise be “irreparably harmed.” But could such an order or injunction prevent any harm here?  Bolton’s book has been widely distributed to booksellers, and to journalists who have already written reviews of it.  Bolton already published an excerpt from the book.  According to Bolton’s publisher, “hundreds of thousands of copies of the book have already been distributed around the country and the world,” and, as noted above, the Constitution might well preclude application of any injunction to booksellers who would continue sell the copies they have on hand.  Widespread dissemination of the book is thus inevitable, regardless of any injunction—and any classified information contained therein will be out of the bag.  All foreign allies and adversaries will learn of it regardless of what Judge Lamberth decides.  How, then, can the government claim that it will be “irreparably harmed” without the injunction?  And relatedly, how could Judge Lambert grant the motion for an injunction if that injunction wouldn’t prevent the injury claimed by the United States?

Cross-posted at Lawfare

Image: National Security Advisor John Bolton (R) listens to U.S. President Donald Trump talk to reporters during a meeting of his cabinet in the Cabinet Room at the White House February 12, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

 

About the Author(s)

Jack Goldsmith

Henry L. Shattuck Professor at Harvard Law School, Senior Fellow at the Hoover Institution, Former Assistant Attorney General of the Office of Legal Counsel (2003-2004), Former Special Counsel to the Department of Defense (2002-2003). You can follow him on Twitter (@jacklgoldsmith).

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).