The federal judge handling a lawsuit alleging that former national security adviser John Bolton included highly classified information in his tell-all book appears to be entirely unimpressed by new claims from a key player in the review of the manuscript.
Ellen Knight, the former National Security Council official who was assigned to locate and weed out any classified information in Bolton’s manuscript for “The Room Where it Happened,” alleges that the White House took unprecedented and irregular steps in an apparent bid to suppress Bolton’s memoir, which was highly unflattering toward President Donald Trump.
But during a lengthy virtual hearing on Thursday, U.S. District Court Judge Royce Lamberth seemed to dismiss the scathing, 18-page letter Knight’s lawyer sent to both sides in the case earlier this week .
Bolton’s legal team sought to leverage Knight’s extraordinarily detailed submission to seek still-undisclosed documents and testimony about how the White House arrived at its conclusion that the book contains highly sensitive information. A Bolton attorney, Michael Kirk, argued that such discovery was appropriate because no “reasonable” person could conclude it was beyond dispute that White House’s process was on the level.
“I think you’re wrong about reasonable people coming to the conclusion that that’s anything more than a political diatribe,” interjected Lamberth, a court veteran appointed by President Ronald Reagan. “She hasn’t seen any of this material,” Lamberth added, apparently referring to top-secret submissions the judge received in June detailing the secrets the White House claims are in the Bolton book.
After Lamberth again scoffed at Kirk’s argument as a “political diatribe,” the attorney pushed back.
“It was not intended to be, nor was it, a political diatribe,” Kirk replied.
The tense exchange exemplified the uphill battle Bolton’s attorneys faced during the hearing, which stretched to about two and a half hours.
After the initial legal skirmish in June, before the release date of Bolton’s book, Lamberth turned down as futile the government’s request for a restraining order to block publication. He then went on to excoriate Bolton for abandoning the prepublication review process in midstream, suggesting that the former national security adviser’s actions may have constituted a crime.
The Justice Department is pressing forward with the lawsuit, seeking to seize any profits Bolton made from the book or may make in the future. Prosecutors are also looking into whether, as the judge suggested, the publication of sensitive information in the book might have amounted to a crime, although that issue was not before the court on Thursday.
Justice Department attorneys have urged Lamberth to rule summarily in the government’s favor, contending that Bolton violated a clear duty to submit his manuscript for review and to wait for the final outcome of that process.
A department lawyer, Jennifer Dickey, argued that the details of what was and was not classified, when and how, were all legally irrelevant because Bolton’s actions ran afoul of agreements he signed to access classified information and a narrower category of closely held secrets known as sensitive compartmented information, or SCI.
“We think that the breach is clearly established in this case,” she said.
“To your knowledge, has any national security adviser ever published a memoir without prepublication review?” Lamberth asked
“No, your honor,” Dickey replied, adding later: “What’s unprecedented here is a national security adviser releasing a memoir of his time as national security adviser within mere months of leaving that job.”
Dickey also argued that Bolton was free to go to court if he thought the process was taking too long or that it had been infected with political bias.
“Courts are able to serve as a judicial safety valve for First Amendment rights,” she said. “He could have filed suit at any time if he thought the government was engaging in bad faith. … He did not do so. Instead he walked away.”
Under questioning from Lamberth, Dickey said Bolton’s first violation of his agreements came not when the book was published in June but back in April, when he sent the manuscript to his publisher without having received clearance from the White House. From that point on, the government was entitled to all the proceeds of the book, she argued.
However, Bolton lawyer Charles Cooper said the case turns on a careful reading of the classified-information agreements, and on Bolton’s good-faith belief that the manuscript didn’t contain any classified information and didn’t even delve into subjects related to the more-protected SCI programs, which includes sensitive intelligence gathering.
Cooper said Bolton complied with the agreements because he relied on Knight’s conclusion that any classified information in the book had been excised. That produced another interjection from Lamberth, who noted that Knight had told Bolton she was awaiting final clearance
“How do you call her an authorized official, when she told him she didn’t have the authority to make that determination? … The agency had not made a determination. Isn’t that what she said?” the judge asked.
Cooper insisted that it was permissible for Bolton to rely on Knight’s judgment, since she was the person assigned to conduct such reviews. “There’s simply no doubt that she was authorized to give him that confirmation. That was her job. She did it day in and day out,” the Bolton lawyer said.
The letter sent to both sides in the suit on Tuesday by a lawyer for Knight alleged that the White House embarked on a secret re-review of Bolton’s book after the career officials and other experts had already blessed the revised manuscript. Through her attorney, Knight said that she was lied to about the reason for the delay in getting final approval, and that White House lawyers declined to tell her what information they concluded was sensitive enough to justify blocking publication of the book.
Knight said that after she refused to sign a declaration supporting the government’s case, officials broke a promise to convert her to a permanent job at the National Security Council and had her transferred back to her career agency, the National Archives.
Bolton’s attorneys argued that her account and other details, like Trump’s statement that he’d be fine with Bolton’s book coming out after Trump leaves office, provide significant evidence that the classification claims were made in “bad faith.”
However, based on the closed-door hearing in June, Lamberth seemed convinced that there was indeed highly sensitive information in the book. He initially said that Bolton was on notice during the review process that the manuscript even contained the more rarified SCI, but the judge later acknowledged that no one might have told the former national security adviser that until the government moved to block publication.
After Cooper said the information appeared to have been classified after the book was written, Lamberth disagreed, citing the closed-door court session.
“That is not an accurate statement of what I know, but maybe that is classified,” the judge said.
Lamberth, who issued no immediate ruling on Thursday, said more details about the nature of the secrets Bolton allegedly revealed might have to be made public as the suit proceeds.