Judge’s ruling opens door for Bolton to be sued or prosecuted, legal experts say

Forty-year-old court case may point toward Bolton's upcoming legal troubles

Last Updated:
June 21, 2020 - 7:47am

The Facts Inside Our Reporter’s Notebook

John Bolton's legal troubles may be far from over. 

The former National Security Advisor won a limited but notable victory in court Saturday when a federal judge ruled that he would not prevent his tell-all book, "The Room Where It Happened," from being published. 

The Trump administration had sued to stop the book's publication, claiming it contained classified information that would endanger national security if it were to be released to the general public. 

U.S. District Judge Royce Lamberth ruled in favor of Bolton, stating that since the book has already been circulated among numerous journalists and media outlets the question of injunction was mostly moot. Yet he acknowledged in his ruling that Bolton may still have "expose[d] himself to criminal liability" in publishing the exposé. 

1980 Supreme Court case may be key

Alan Dershowitz agreed. Dershowitz, the storied Harvard law professor and noted proponent of civil liberties, told Just the News on Saturday that there "may be a basis for a lawsuit against Bolton by the government."

Dershowitz pointed to the 1980 Supreme Court case Snepp v. United States as the controlling precedent. In that case, Frank Snepp — a CIA intelligence analyst in Saigon during the Vietnam War —published the book "Decent Interval" following his departure from the agency.

The government sued Snepp over the book, which was drawn from an after-action report he had written for the CIA following his service in Saigon. The government argued that Snepp had broken his contractual obligation to submit his book to the CIA prior to publication.

The Supreme Court eventually ruled against Snepp, forcing him to surrender his monetary earnings to the federal government and enjoining him from future publication without prepublication review from the government. 

Dershowitz represented Snepp in the controlling case. "We argued the rule was unconstitutional. We lost," he told Just the News. 

"I don’t approve of that decision," he said. "I think it’s wrong on the law, and I think it's wrong on the Constitution. But it may be a basis for a lawsuit against Bolton by the government."

Kevin Brock, meanwhile — the former FBI assistant director for intelligence — suggested that it appeared Bolton had worked for the Trump administration just to line his own pockets. 

"Everybody who’s at the SCS level in government has to sign documentation that they’re not going to disclose information that they collect while they’re performing their duties without first getting approval," Brock said. 

"It seems like more and more executives are ignoring that, and the courts haven’t really tested it or enforced it that I’m aware of."

"These guys shouldn’t be joining administrations to write books and enrich themselves," he said. "It’s like they’re accepting jobs with an eye to enriching themselves after serving."

'Major compromises' could lead to prison sentence

Joseph diGenova, a former U.S. Attorney for the District of Columbia, said Saturday that Bolton's possible publication of classified materials could lead to a prison sentence. 

"According to published reports, there were classified affidavits filed in the civil case by the Intelligence Community which alleged major compromises of sources and methods, including the identities of persons of great significance," diGenova told Just the News. 

"If that is all true," he continued, "not only do I expect the government to file a civil lawsuit under Snepp, but if in fact there are human sources as well as signals intelligence that have been compromised, I expect him to be indicted."

"The reason is very simple," he said. "A person of that stature who flouts and betrays the standards of classified information must not be allowed to tell other people subject to those restrictions that they can get away with it. The department almost has no choice."

DiGenova, who said he was "absolutely disgusted" with the former Trump official, claimed Bolton's behavior was "not only a betrayal of the POTUS, who he purported to serve, but it is a betrayal of the trust of the American people." 

'The law is not necessarily in his favor'

John Jeffries, Jr., a professor at the University of Virginia School of Law who specializes in federal courts and criminal law, said the case could go numerous ways. 

"The premise of the judge’s remarks is the prior restraint doctrine," he told Just the News. "That is to say, the government cannot prevent publication even when it could punish release of the information."

"So the judge might be saying, in a minimalist interpretation, that only the prior restraint doctrine bars the government and that [Bolton] is fully liable as a theoretical matter to subsequent punishment," Jeffries said. "Or he might be saying that he actually foresees criminal liability for release of classified secrets. I can’t tell."

Ultimately, Jeffries said, Bolton's legal issues may be probable but not severe. "The risk that [Bolton] will forego profits is not negligible," he said. "The risk that he will be subject to criminal sanctions seems to me very small."

Dershowitz noted that ever since the case of the Pentagon Papers, courts have looked negatively on the principle of prior restraint. In that case, the Supreme Court ruled in New York Times Co. v. United States that the First Amendment permitted publication of classified materials. 

"But even in that case the Court said there might be liability," Dershowitz said. "So the mere fact that the Court [on Saturday] didn’t enjoin the distribution of Bolton's book doesn’t mean Bolton is in the clear." 

That liability has been alleged by both the federal government and Lamberth, who in his ruling Saturday said that Bolton "proceeded to publication without so much as an email notifying the government." The government, Lamberth said, is "likely to succeed on the merits" in any further case against Bolton. 

Dershowitz suggested as much himself. 

"I hope he (Bolton) wins," he said. "Because I don’t like this law. But the law is not necessarily in his favor."

"Of course it all depends on what’s in the book," he added. "I haven’t read the book. It all depends on if there’s any classified material in the book, or if any of it is in violation of his contract. It’s case-specific."

Bolton's book is due out on June 23. 

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