Industry & Advocacy News
June 19, 2020
On June 16, the United States, apparently acting on behalf of the White House and the National Security Council sued former National Security Advisor John Bolton, demanding that he delay the release date of his book, The Room Where It Happened, until the book’s prepublication review process is completed. The government followed up with a request for a temporary restraining order and preliminary injunction asking the Court to stop publication of the book. Bolton’s counsel filed a brief on June 19 moving to dismiss the lawsuit and opposing the TRO, stating “[i]f the First Amendment stands for anything, it is that the Government does not have the power to clasp its hand over the mouth of a citizen attempting to speak on a matter of great public import.”
The District Court of the District of Columbia will hear arguments from the parties today, Friday, June 19; the hearing was expedited because the book is scheduled for public release on June 23. Copies of the book are already in the hands of reviewers and journalists, though, and there have been a number of news stories containing various excerpts, including coverage in The New York Times and The Washington Post. In a statement issued on June 17, Bolton’s publisher, Simon & Schuster, called the government’s motion “a frivolous, politically motivated exercise in futility.” Simon & Schuster added, “[h]undreds of thousands of copies of John Bolton’s ‘The Room Where It Happened’ have already been distributed around the country and the world. The injunction as requested by the government would accomplish nothing.”
The complaint is largely premised on Bolton having signed a series of non-disclosure agreements both as a condition of assuming the post of national security advisor and upon his subsequent departure from the post; it remains to be seen whether the Court will uphold the terms of these NDAs. The complaint sets out a detailed description of the book’s prepublication review process and the back and forth between the NSC and Bolton in making revisions to the manuscript. While the government’s desired outcome, given the delays and lawsuit, appears to be to prevent Bolton from publishing the book or providing certain observations, the complaint specifically states that “[t]he United States is not seeking to censor any legitimate aspect of Defendant’s manuscript; it merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated.”
The Trump Administration has previously tried to quash publication of such books as Fire and Fury and Unhinged: An Insider’s Account of the Trump White House through vague libel threats and cease and desist letters sent by the president’s personal attorneys. In this lawsuit, though, the claims are not being asserted on the president’s personal behalf but by the “United States of America” as the plaintiff, on the grounds that publication would “compromise[e] national security.” Bolton is the only named defendant in this case, but the government asks the Court in the complaint to also bind the publisher, Simon & Schuster, and others acting “in active concert or participation” with him; it also states in its papers in support of the TRO that “[c]ommercial resellers further down the distribution chain, such as booksellers,” would also be bound by the injunction.
If the book is released and sold before the review process is completed, the government asks that any profits from the book—including from movie rights—be placed in a “constructive trust for the benefit of the United States.” The government uses the fact that Bolton and his publisher have already twice agreed to shift the release date of the book as an argument for additional delay, since “Defendant and the publisher possess the authority to continue to delay the release date until such time as the prepublication review process” is completed.
Free speech must be protected, and while true issues of national security are important to factor into these judgments, Bolton and his publisher seem to have acted in good faith in cooperating with the government, and the complaint admits that the initial reviewer “was of the judgment that that the manuscript draft did not contain classified information.” Yet, the government is still holding the book hostage. In a recent New York Times article, a spokesman for Simon & Schuster called the lawsuit “nothing more than the latest in a long-running series of efforts by the administration to quash publication of a book it deems unflattering to the president.” We will provide updates on today’s hearing and the outcome of the government’s request for a temporary restraining order.