The government was unable to stop publication of former U.S. National Security Adviser John Bolton's bestselling book The Room Where it Happened, but in filings last week the Department of Justice moved to seize the author's royalties—including his reported $2 million advance—citing the author's nondisclosure agreements.
"As the Supreme Court has explicitly held, the proper remedy for a violation of a person’s contractual agreements to undertake prepublication review is the imposition of a constructive trust on all proceeds of his book," reads a July 30 brief in support of the government's motion for Summary Judgment against Bolton, "including amounts Defendant may already have received (which he should be required to disgorge) and any and all amounts he may receive in the future as royalties or otherwise."
The filings come after Bolton, in a July 16 motion, asked the court to dismiss the DoJ's remaining civil case against him, arguing that he has not breached any of his nondisclosure agreements. "The Government’s claims are all foreclosed by the text of the very contractual documents upon which they purport to be based," Bolton's attorneys argued. But even if the court found that the nondisclosure agreements did preclude Bolton from moving forward with his book, "imposing such a requirement—in effect, a blanket prior restraint of virtually any speech by former government employees—that requirement would be flatly contrary to the First Amendment."
In filings last week, however, the DoJ rejected Bolton's arguments, noting that the courts have already found that prepublication reviews are constitutional, and that Bolton was clearly contractually required to await a written release from the government before proceeding with publication.
"Defendant was not permitted to publish his manuscript until the prepublication-review process was complete. Indeed, the text of the nondisclosure agreements Defendant signed require 'written authorization' from the agency before an author is allowed to publish a work undergoing prepublication review," the DoJ filing states. "Thus, even if he believed the information was not classified or that the prepublication review process was consuming too much time, the appropriate course of action under settled law was to initiate a lawsuit against the Government to obtain judicial resolution of these matters, not to unilaterally distribute his book to the entire world."
On June 20, federal judge Royce Lamberth denied the DoJ's emergency application for an order blocking publication of Bolton's book. But in his 10-page opinion and order, Lamberth rebuked Bolton, echoing the DoJ's position that Bolton should have sued if he believed his book was being wrongly suppressed, and concluding that Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."
Bolton is due to reply to the government's filings by August 14.
Update: After this story was filed, the court approved an extension of time. Bolton now is due to reply by August 20, and the government's reply deadline is now September 3.
