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Can President Trump block the publication of John Bolton’s book? History is not on his side, say experts

June 17, 2020, 8:19 PM UTC

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Is John Bolton attempting to undermine national security to sell books, or is President Donald Trump abusing his power to stop unflattering tell-alls from being released?

That’s the question at hand as the Justice Department has sued Bolton, Trump’s former national security adviser, in order to block the release of his tell-all, The Room Where It Happened. The memoir, the Justice Department claims, contains classified information that could compromise the country’s national security. Bolton’s publishing house, Simon & Schuster, says that this is just another case in a growing series of attempts by the President to block the publication of books about himself. 

Bolton’s memoir, meanwhile, has sprung to the No. 1 spot on Amazon’s bestseller list amid all the controversy. 

While the details of the lawsuit are complicated, the Justice Department claims that Bolton did not finish a prepublication screening for classified information and that the book violates a nondisclosure agreement he signed.

Bolton’s lawyer, however, says that the book’s release was pushed back twice already to undergo a “prepublication review” by the National Security Council (NSC) and that the claim that the book contains classified information is 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.”

When asked directly about classified information in the book this week, President Donald Trump made the false claim that all conversations he participates in are considered classified and threatened Bolton with criminal charges if the book is published.

“I will consider every conversation with me, as President, highly classified,” the President said. “So that would mean that if he wrote a book and if the book gets out, he’s broken the law. And I would think that he would have criminal problems. I hope so.”

While the President may ultimately decide what information is classified and what isn’t, a 2009 executive order outlines that certain materials shall not be classified if they “(1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.”

“Yes, hypothetically he could exercise his classification authority retroactively in an expansive way beyond what current standards permit,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, to CNN. “But doing so, especially in an arbitrary and self-serving manner, would make it easier for a court to overturn his action on First Amendment grounds.”

Book publisher Simon & Schuster released a statement saying that the lawsuit “is 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.” 

The lawsuit, notably, does not make mention of the publishing house (which has already distributed copies of the book for review) and instead focuses on Bolton himself and the profits he will receive. It also asks him to persuade Simon & Schuster to pull the book back. 

“Ambassador Bolton has worked in full cooperation with the [National Security Council] in its prepublication review to address its concerns, and Simon & Schuster fully supports his First Amendment right to tell the story of his time in the White House to the American public,” Simon & Schuster continued in its statement. 

The lawsuit, filed by Assistant Attorney General Joseph Hunt, says that “at no time has Defendant received ‘written authorization’ as required by the NDAs that disclosure of the book ‘is permitted.’ The opposite is true. Defendant was repeatedly advised in writing that the prepublication review process was ongoing.” The suit, however, also mentioned that the book was reviewed by Ellen Knight, senior director for records, access, and information security management at the NSC, who “was of the judgment that the manuscript draft did not contain classified information.” Even so, the clearance process, she told Bolton’s team, “remained ongoing.”

This is not the first time the Trump administration has attempted to use the courts to stop the release of unflattering books about the President. In January 2018 Trump’s attorney, Charles Harder, attempted to stop the publication of Michael Wolff’s Fire and Fury by claiming the book contained libel and “actual malice.” The attempt was unsuccessful, and Wolff issued a statement thanking the President for helping propel his book to the top of the charts. 

In 2018, his team also made legal threats against Omarosa Manigault Newman’s White House memoir, Unhinged. The President said he would sue Newman for confidentiality breaches. Simon & Schuster brushed off the threat as “hollow.”

In 2019, the President’s team attempted unsuccessfully to block the publication of the anonymous tell-all A Warning. The Justice Department said the author also violated nondisclosure agreements. Literary agency Javelin defended its author, and the book was published. “Our author knows that the President is determined to unmask whistleblowers who may be in his midst. That’s one of the reasons A Warning was written,” Javelin noted in a statement. 

While the President’s attempts to stop unflattering books from being published have been largely unsuccessful, they are still unprecedented and worrisome, say experts. 

Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project, released a statement this week comparing the President to Richard Nixon. “Any attempt by the Trump administration to block the publication of John Bolton’s memoir is doomed to fail,” he said. “A half-century ago the Supreme Court rejected a similar attempt by the Nixon administration to block the publication of the Pentagon Papers, and since then it has been firmly established that prior restraints on publication are unconstitutional and un-American. As usual, the government’s threats have nothing to do with safeguarding national security, and everything to do with avoiding scandal and embarrassment.”

In 2018, in defense of Michael Wolff, the Authors Guild, a legal advocacy group, suggested that the President’s actions were uniquely dangerous to the First Amendment. “To the Guild’s knowledge, no prior President has sued a writer for libel, and for good reason,” they wrote. “The ability to criticize the government and its leaders lies at the essence of the First Amendment’s protection of free speech; and threats of libel lawsuits are one of the de facto primary means of curtailing free speech in this country today.”

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