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Can @realDonaldTrump stop @AmbJohnBolton from publishing his book? Almost certainly not. Here’s why. 1/
Some quick background, first. Bolton’s memoir on his time in the White House is scheduled to be published next Tuesday. Yesterday, though, the Department of Justice sued Bolton, appearing to ask a federal court to stop the publication. 2/
https://www.justsecurity.org/wp-content/uploads/2020/06/Bolton.Complaint.WithExhibits.pdf
https://www.justsecurity.org/wp-content/uploads/2020/06/Bolton.Complaint.WithExhibits.pdf
The first problem for the government is that Bolton’s book is already out of Bolton’s control. According to a letter sent by Bolton’s lawyers, the publisher (Simon & Schuster) has already printed it and shipped it around the country. 3/
Stephen Colbert seems to have an embargoed copy of the book, and if so, it is likely that other members of the media do, too. 4/ https://twitter.com/brianstelter/status/1273219952133242881?s=20
If the government really wanted to stop the publication of Bolton’s book, it would need an injunction not just against Bolton, but against his publisher and every member of the media that has a copy. 5/
That kind of injunction is called a “prior restraint” in First Amendment caselaw, and prior restraints against the publication of matters of public concern are almost never granted. 6/
In one of its seminal free-speech cases, the Supreme Court refused to issue a prior restraint against the publication of the so-called “Pentagon Papers,” a classified study on U.S. involvement in Vietnam that Daniel Ellsberg had given to the press. 7/
In the Pentagon Papers case, the Supreme Court made clear that the government bears an extraordinarily high burden to justify a prior restraint. Given what we now know about the review of Bolton’s book, it is very unlikely the government could meet that burden in this case. 8/
Perhaps unsurprisingly, then, the government’s suit doesn’t even seek an injunction against Bolton’s publisher or the members of the media who have copies of his book. The only defendant named in the lawsuit is Bolton. /9
Instead, the complaint asks the court to order Bolton to instruct his publisher—“insofar as he has the authority to do so”—not to publish the book. /10
Somewhat strangely, the complaint also asks for a declaration that any injunction against Bolton also binds Simon & Schuster (and others working “in active concert or participation with” Bolton). /11
It is unlikely that such a declaration could enjoin Simon & Schuster from publication (rather than just binding the company to respect the injunction *against Bolton*). Even if so, the gov’t would still need to meet the Pentagon Papers test. And again, it would likely fail. 12/
So, the suit isn’t likely to prevent the publication of Bolton’s book. In fact, the suit doesn’t even seem designed to do so, because it focuses principally on Bolton, and because the gov’t has yet to actually file a motion for an injunction, with publication just days away. 13/
But suppose that Bolton did have exclusive control of the book. Could the government enjoin him from publishing it? That question is a bit trickier, but the answer is probably still “no.” 14/
The Supreme Court hasn’t addressed this issue, but at least one court has held that a suit for an injunction against an *author* who violated a secrecy agreement would also have to satisfy the very high Pentagon Papers test. 15/
https://scholar.google.com/scholar_case?case=12580851149266513476
https://scholar.google.com/scholar_case?case=12580851149266513476
If that’s correct, then the government’s request for an injunction would likely fail even if an injunction against Bolton were capable of preventing publication of the book. 16/
So, where does that leave this lawsuit? At least as far as the request for an injunction is concerned, the suit seems more theatrical than serious. Some have speculated it has an audience of one. That seems very possible. 17/
The suit does ask for more than an injunction, though. It also asks the court to order Bolton to turn over the proceeds of his book to the government. 18/
In Snepp v. United States, the Supreme Court approved of that kind of an order, at least in a case involving a former CIA employee who failed to submit his book for prepublication review. 19/
https://scholar.google.com/scholar_case?case=13078129483334213249
https://scholar.google.com/scholar_case?case=13078129483334213249
There are important differences between that case and Bolton’s, however. Bolton submitted his book for review; he engaged with the process for months; he accommodated the requests made; and he was told the book didn’t have classified information in it (at least at one point). 20/
Also, the government failed to complete its review of Bolton’s book, many months after he submitted it, even though at least one court (the Fourth Circuit) has said that authors can only be required to wait 30 days. 21/
https://scholar.google.com/scholar_case?case=16252663640150462840
https://scholar.google.com/scholar_case?case=16252663640150462840
And perhaps most troublingly, there are credible reports that President Trump is abusing the system of prepublication review to silence Bolton’s criticism of his presidency, rather than to safeguard information whose disclosure would cause harm. 22/
It’s questionable, then, whether the government will succeed even on its narrower claim to the proceeds of Bolton’s book. 23/
If all of this makes you think this system of “prepublication review” is broken, you’re not alone! @knighcolumbia and the @ACLU are currently litigating a challenge to the constitutionality of the system. 24/ https://knightcolumbia.org/cases/edgar-v-maguire
The suit argues that any constitutional system of review must be far more precise in its requirements and also more concrete in the deadlines it sets for the review of manuscripts. The district court dismissed the case, but we’ve appealed and will be briefing the appeal soon. 25/
As Bolton's saga demonstrates, the current system gives the gov't far too much power to silence former employees. And if they can do this to a powerful, well-lawyered official like Bolton, imagine what they can do to former employees with far less influence and money. 26/
Stay tuned for more, and check out these links to our work and the @ACLU’s work on this issue. /END
https://knightcolumbia.org/cases/edgar-v-maguire https://www.aclu.org/press-releases/aclu-and-knight-institute-challenge-constitutionality-far-reaching-government
https://knightcolumbia.org/cases/edgar-v-maguire https://www.aclu.org/press-releases/aclu-and-knight-institute-challenge-constitutionality-far-reaching-government
