GateHouse: The president helps hawk Bolton’s book

Matthew T. Mangino

GateHouse Media

June 19, 2020

Former national security advisor John Bolton should drop a thank you note in the mail to President Donald Trump and maybe throw in a sleeve of golf balls.

Authors and publishing houses beg and plead for a book review in a big city paper. The best known authors travel the country visiting book stores, giving lectures and autographing their books to drum up sales.

Thanks to President Trump, and his personal legal team over at the Department of Justice, John Bolton’s name and photograph are on the front page of every newspaper in the country, and around the world. More importantly, right next to Bolton’s name is the title of his soon to be released book, “The Room Where it Happened.”

It all began when Bolton joined the Trump administration. He signed a nondisclosure agreement with the government agreeing to submit any manuscript about his tenure to the White House for prepublication review so the government could ensure that it did not contain classified information.

The Justice Department has acknowledged that Bolton submitted his manuscript for review in the last days of 2019. After a lengthy review the prepublication process was completed and, according to the Washington Post, the “manuscript draft did not contain classified information.”

Get the printing presses rolling - Bolton’s book is ready for release. Well, not so fast, the White House’s senior director for intelligence, Michael Ellis was “concerned that the manuscript still appeared to contain classified information, in part because the same administration that the author served is still in office and that the manuscript described sensitive information about ongoing foreign policy issues.”

The White House was so concerned about the possible breach of national security that the Justice Department filed a lawsuit to stop the release of Bolton’s book. The next day, they filed for a restraining order to enjoin Bolton and his publisher Simon & Schuster from releasing the book.

There is one obstacle in the way of the DOJ’s effort to muzzle Bolton. The United States Constitution, namely the First Amendment.

The Justice Department’s efforts to stop “The Room Where it Happened” from being released is known as a prior restraint. Under well-established First Amendment law there is an almost absolute prohibition against the imposition of prior restraints against the publication of books and news stories related to public officials.

The First Amendment has always stood for the principle that people have a right to publish information free from government censorship.

Relating to national security, there are some narrow exceptions to a prior restraint. The remedy is prepublication review. Bolton got consent to publish and then White House officials jumped in. As the Washington Post suggested, the White House’s concern is, ”(J)ust another way of saying the book includes recent, newsworthy information of public concern that the president wants to conceal.”

According to the New York Times, Bolton’s lawyer Charles J. Cooper called the DOJ’s lawsuits “a transparent attempt to use national security as a pretext to censor Mr. Bolton, in violation of his constitutional right to speak on matters of the utmost public import.”

The relationship between prior restraint and national security was famously tested in 1971. In what became known as the “Pentagon Papers” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. Lawyers for President Richard Nixon argued that prior restraint was necessary to protect national security.

The Supreme Court disagreed. The Court ruled that the government’s use of the vague word “security” should not be the premise “to abrogate the fundamental law embodied in the First Amendment.” The High Court reasoned since the publication of the Pentagon Papers “would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.”

Setting the bluster aside, the DOJ has little chance of blocking the release of Bolton’s book or quelling the administration’s embarrassment that follows.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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