A federal judge on Saturday rejected the Department of Justice's motion for a temporary restraining order blocking publication of former national security adviser John Bolton's memoir The Room Where It Happened, paving the way for the book's publication next week. But in his decision, judge Royce Lamberth suggested that Bolton still faces stiff penalties—including the loss of his royalties and potential criminal prosecution—for his "unilateral" decision to push ahead with publication without a formal release from government reviewers.
In his 10-page opinion, the judge swiftly dispatched with the government's effort to block publication without having to reach the clear First Amendment concerns embodied by such prior restraint. "For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir," Lamberth wrote. "With hundreds of thousands of copies around the globe—many in newsrooms—the damage is done," he observed.
"Defendant Bolton has gambled with the national security of the United States. He has exposed his country to harm and himself to civil (and potentially criminal) liability. But these facts do not control the motion before the Court," the judge concluded. "The government has failed to establish that an injunction will prevent irreparable harm. Its motion is accordingly denied."
In a rebuke, Lamberth devoted the majority of his opinion to Bolton's decision to push ahead with publication without proper clearance.
"Bolton could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion. Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong," Lamberth held. "Upon reviewing the classified materials, as well as the declarations filed on the public docket, the Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."
The decision means that the book will be published as scheduled on Tuesday, June 23, and in a statement, Bolton's publisher Simon & Schuster praised the court's ruling. "We are grateful that the Court has vindicated the strong First Amendment protections against censorship and prior restraint of publication," the statement reads. "We are very pleased that the public will have the opportunity to read Ambassador Bolton’s account of his time as National Security Advisor."
But with the question of publication now resolved, a fascinating civil case still remains against Bolton. In his opinion, Lambert suggested that the government was acting well within its authority with its review.
"Many Americans are unable to renew their passports within four months, but Bolton complains that reviewing hundreds of pages of a National Security Advisor’s tell-all deserves a swifter timetable," Lamberth wrote, adding that it is "well-settled that a mandated prepublication review process is not an unconstitutional prior restraint."
Bolton, meanwhile, counters that after several revisions, the book contains no properly classified material that could harm U.S. national security in any way—a fact he claims was confirmed by Ellen Knight, the National Security Council official who handled the review process before it was taken over by the White House. Rather, Bolton claims that the Trump Administration is abusing the government review process to suppress a book that threatens to embarrass the president.
In his declaration in support of Bolton, S&S CEO Jonathan Karp backed Bolton's view that the Trump administration was seeking to suppress the book for personal reasons. "The many public statements President Trump has made about the book further reinforce my belief that the Trump Administration’s actual objective is to shield the President from an unflattering portrait of his leadership and not to protect the national security interests of the United States," Karp told the court. "I cannot help but conclude that President Trump has politicized the prepublication review process, including through this lawsuit, and that he is using it as a pretext to prevent the release of information of immense interest to the public that he fears could be damaging to his prospects for reelection."
In a statement, Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said Saturday's ruling highlights the need for more transparency in the government's prepublication review process.
“The court was of course right to reject the government’s request for a prior restraint,” Jaffer said. “In other respects, though, the ruling is a troubling reaffirmation of broad government power to censor in the name of national security. The prepublication review system puts far too much power in the hands of government censors, and reform of this dysfunctional system is long overdue."
