“Isn’t the question whether the information is classified or not?” Lamberth prodded Bolton’s defense. “You’ve engaged in that whole political diatribe, but it really has no place in what we’re arguing today.”
The oral argument came after a lawyer for the career government official who conducted the initial review for classified information in Bolton’s manuscript contended in a letter to the court that Trump aides had “commandeered” the process, then erroneously claimed the memoir contained classified information and failed to propose edits to facilitate publication.
Lamberth refused to halt publication in a June 20 ruling, saying the government acted too late to prevent the sale of already distributed books.
At issue Thursday was Bolton’s motion to toss out the case, and the government’s motion for a summary ruled that the government can seize Bolton’s profits because the book contained classified information.
Bolton attorney Charles J. Cooper argued that the government had failed to allege he knowingly disclosed such information and asserted that the nondisclosure agreements he signed required him to obtain written authorization to release only material he knew to be classified.
If unsure, Cooper argued, he was required only to confirm from “an authorized official” — in this case, he said, Ellen Knight, the National Security Council’s senior director for records access — that the information was unclassified. Cooper claimed that this is what Knight verified by phone and email after the initial review and that Bolton knew of no other classified information remaining in the manuscript he submitted to his publisher April 27.
“The government must be able to allege that Bolton knew or had reason to believe that his manuscript contained SCI, or it contained a description of activity that derived from SCI,” the most sensitive compartmented information, Cooper argued. “They have not alleged that, and we would submit they cannot allege that.”
Arguing for the government, Deputy Associate Attorney General Jennifer B. Dickey denied that the contracts required violations to be known. Dickey said there was no dispute that Bolton gave the manuscript to his publisher without receiving formal written authorization that the pre-publication review he initiated was concluded.
The government earlier produced six samples of what it asserted was classified material, three of which were classified before April 27 and one Gen. Paul M. Nakasone, director of the National Security Agency, said in a declaration “implicates” the most sensitive level of material.
“It would make no sense for the pre-publication review to attach and then say an author could opt out before written authorization that it was completed,” Dickey argued. If he objected with the process, Bolton should have sued instead of walking away.
“What is unprecedented is for the most recent national security adviser, who had been entrusted with classified information on a daily basis, who has a Yale law degree and experienced counsel, would think it’s consistent with his contractual or fiduciary duty to simply sign off to his publisher on April 27 without waiting for written authorization that it did not contain information damaging to national security,” Dickey said.
Bolton’s side said it is premature to decide the case before Lamberth decided whether the defense can investigate whether information in the book was properly classified and whether the review was conducted in the interest of national security, or concocted to protect Trump from political embarrassment.
The government has acknowledged that after Knight concluded Bolton had completed required edits, national security adviser Robert C. O’Brien Jr., whom Trump appointed to succeed Bolton, ordered an additional review — a move Knight and government attorneys called unprecedented.
O’Brien tapped another new appointee, Michael Ellis — the NSC’s senior director for intelligence and a former aide to Rep. Devin Nunes (R-Calif.) — who received his classification authority March 1 and was not officially trained on it until the day after he completed the Bolton manuscript review.
In a letter from her counsel, Knight said that Ellis erroneously challenged hundreds of passages, that government attorneys pressured her to disavow her professional team’s earlier conclusions and that when she refused, she was told she no longer had a path forward at the security council.
Knight said several government attorneys agreed in a later debriefing when she speculated that the reason the Justice Department was suing Bolton was “because the most powerful man in the world said that it needed to happen,” according to her lawyer’s letter.
Arguing Thursday, Bolton attorney Michael W. Kirk said there was a concerted effort by White House lawyers to get Knight to change her story over five consecutive days in 18 hours of meetings, which was especially revealing of bad faith. He also cited Trump’s statement in June to television news anchors that the White House was going to try to block publication of the book, saying, “After I leave office, he can do this.”
“Any concern truly grounded in national security would not magically evaporate when the president leaves office and is not subject to political embarrassment,” Kirk said.
Lamberth, however, objected.
Knight “hasn’t seen the material,” submitted by the government only to the court, that four government officials have declared to be classified, including a sensitive passage cited by Nakasone, the judge noted. “She didn’t know what the final classifications were,” Lamberth said.