President Donald Trump’s administration is suing former national security adviser John Bolton in a last-ditch effort to block publication of his forthcoming memoir. The Trump administration apparently understands that directly asking the court to bar publication would fail. So instead, government lawyers have invented a series of extraordinarily weak legal claims based on the nondisclosure agreement that all national security officials must sign.
The case should be dismissed posthaste by the U.S. District Court. It is a frivolous lawsuit, in lawyer’s jargon. Worse, it attempts an end run around clearly established First Amendment law. If I were Bolton’s lawyer, I would seek not merely dismissal but sanctions against the government and legal fees.
To be clear, I have no great sympathy for Bolton personally. He should have testified before the U.S. House during last year’s impeachment inquiry, when what he has to say would have mattered.
As you may recall, Bolton engaged in an elaborate fan dance at that time. When the House seemed poised to call him, he said he would not testify. He changed his mind at just the moment when the impeachment trial shifted to the Senate, where Republicans were in control — and never going to call him. Somewhere along the way, Bolton announced that he intended to write a book.
It wasn’t a good look. Nevertheless, law is law, and free speech is free speech. There are important principles at stake here. As is often the case, when the government comes after a citizen’s free speech, the citizen isn’t a model one.
The reason the lawsuit doesn’t just ask the court to prohibit publication or order redactions to the book is that this would amount to what free speech law calls “prior restraint” — that is, censorship in advance of publication. Such censorship is profoundly disfavored under the First Amendment. The Supreme Court refused the Nixon administration’s attempts to impose prior restraints in the case of the Pentagon Papers, and those were classified. Just about the only circumstance in which a court might allow prior restraint would be the publication of the recipe for making a hydrogen bomb.
Because a direct request for censorship would be laughed out of court, the Trump administration lawyers have gotten creative — so creative that they are out to lunch. Their complaint alleges three breaches of contract based on two standard nondisclosure agreements that national security officials like Bolton sign. In essence, those NDA agreements state that even after leaving office, the officials will submit their publications for the National Security Council to review, lest they contain any classified information. One of these agreements contains a sentence that says the employee will “assign” to the government any profits from the disclosure of classified information.
The factual problem with the government’s argument is that, as it acknowledges, Bolton did submit his manuscript for an extraordinarily lengthy and detailed review. A designated NSC official made hundreds or maybe thousands of editorial suggestions, and Bolton complied. Then, after this monthslong process was over, the administration told him a different official would be undertaking a further review at the request of an assistant to the president — meaning it came from a political appointee. Although the White House has not formally given its approval to Bolton, it is pretty clear that he has not breached his obligation to submit the manuscript for review. What’s more, he hasn’t published it yet, so even if there were a breach, it so far hasn’t happened.
At the legal level, the problems are many. To name just a few:
The government has invented a brand-new idea that Bolton had a fiduciary obligation to the government to protect the classified information, as if he were a trustee of the government rather than an employee. Nothing in the contract says so, of course. If the court were to embrace this theory, potentially everyone who signs an NDA could be treated differently from the way their NDAs read. The idea here is to get around the very contract the government is supposedly trying to enforce. Insisting on some separate legal relationship between Bolton and the government is not only preposterous but legally dangerous and would upset settled law.
The government is also insisting that Bolton tell his publishers not to publish. In legal terms, this kind of order is called “specific performance.” But specific performance is not the legal remedy in this situation. The ordinary legal remedy for breach of contract is simply monetary damages, and those are almost always awarded after the breach has occurred, unless the plaintiff has exhausted all other legal remedies and would suffer irreparable harm by the breach. The government will not be suffering any “irreparable harm” from publication of the book.
Third, the government is demanding all of Bolton’s royalties or proceeds from the book. But the NDA contract only says that the government would be entitled to royalties from the disclosure of classified information — at most, some small percentage of the book’s overall revenue.
There’s more, but I suspect you’re already getting the flavor of just how outrageous the government’s legal theories are. Any reasonable court will dismiss them — and soon. Courts have the power to sanction lawyers who waste everyone’s time with frivolous arguments, and to impose penalties including the awarding of attorneys’ fees to defendants who are subject to frivolous lawsuits.
But this lawsuit is even worse than frivolous. It’s an assault on established law and on the First Amendment. The lawyers who filed it — apparently all political appointees — ought to be ashamed.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”