Former national security adviser John Bolton scored a victory on Thursday in the legal battle over his tell-all memoir, as a federal judge ruled that Bolton was entitled to seek evidence that President Donald Trump or his aides sought to slow or block publication of the book for political reasons.
U.S. District Court Judge Royce Lamberth issued a ruling denying, for now, the Justice Department’s request for an order allowing the government to seize Bolton’s future profits from the book “The Room Where It Happened.”
Lamberth said that before the court could resolve that issue, Bolton was entitled to investigate whether concerns unrelated to national security affected the process of reviewing his book manuscript for classified information. Bolton ultimately gave the go-ahead for Simon & Schuster to publish even though he had not received final sign-off from the White House.
“The Court does not countenance any individual’s decision to short-circuit prepublication review and publicly disseminate potentially classified information,“ Lamberth wrote in an 18-page opinion. “But nor does it wish to free the government from all consequences for potential misconduct.”
The decision ensures that Bolton’s court fight will drag into the administration of President-elect Joe Biden, who takes office on Wednesday. His Justice Department must determine whether to continue litigating against Bolton for purportedly disclosing highly classified material in his book. The book offered Bolton’s firsthand account of Trump’s relationships with foreign leaders, alleging he offered favors to autocrats, blessed Chinese internment of Uighurs and pressured Ukraine to investigate Biden.
The Justice Department filed suit against Bolton in May in a bid to block publication of the book. However, Lamberth ruled that the move came too late because by the time he ruled, review copies of the book had already been released to the media.
Prosecutors also opened a criminal investigation last year into whether the book violated laws against disclosure of classified national security information. The status of that probe is unclear, but it will probably also wind up on the plate of incoming Biden administration appointees.
Lamberth, an appointee of President Ronald Reagan, said in his ruling Thursday that he wouldn’t second-guess the executive branch’s classification determinations. He also concluded that the book does, in fact, contain highly sensitive national security secrets.
However, the judge said Bolton could explore whether improper considerations infected the review process and whether the government should forfeit some of its legal options as a result.
“Strong public policy concerns favor allowing an unclean hands defense in actions to enforce secrecy agreements,” Lamberth wrote. “To hold otherwise would create tremendous moral hazard, because otherwise the government would face effectively no consequences for conducting prepublication reviews in bad faith.”
The court’s ruling raises the prospect of the incoming Biden White House being immediately thrust into a series of politically awkward decisions over how vigorously Biden will seek to protect the secrecy of his predecessor’s deliberations with top advisers. Trump’s lawyers could potentially intervene in the case to seek to limit discovery even if Biden chooses not to object.
Lamberth recognized the potential executive-privilege issues and said he planned to structure the discovery process to try to minimize those concerns. “The Court will work to avoid a confrontation of constitutional dimensions,” the judge wrote.
Lamberth said he planned to allow Bolton to begin by questioning junior officials about the review process. The judge said he might allow more intrusive discovery in phases if he deemed that necessary.
A Justice Department spokesperson declined to comment on the new ruling.
Bolton’s attorney, Charles Cooper, said: “We are reviewing the court’s order and opinion now. We can say initially that we are very pleased at the opportunity to obtain discovery on the issue of the government’s bad faith in the prepublication review process.”