A federal judge recently allowed the publication of John Bolton’s book to proceed although it likely contains classified information. The Justice Department sought an injunction and a temporary restraining order to prevent Bolton from releasing his book. However, the judge denied the motion, finding that the government failed to establish that an injunction would prevent “irreparable harm” given the number of copies that had already been distributed. However, although Bolton was permitted to proceed with publication, the government may still be able to pursue/claim the profits from Bolton’s book sales.
According to the Judge Royce Lamberth, who presided over the injunction hearing, “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.” In other words, Bolton could still face possible legal exposure as a result of his actions.
Putting aside the potential criminal liability (if any exists), Bolton could also face civil liability. After all, Bolton, the former national security advisor to President Trump, was privy to highly classified information, some of which was top-secret, and was likely required to go through a clearance process before publishing the information. As reported by CNN, citing Attorney General William Barr:
“People who come to work in the government and have access to sensitive information generally sign an agreement that says when they leave government, if they write something that draws on or might reflect some of the information they’ve head access to, they have to go through a clearance process before they can publish the book. We don’t think Bolton has gone through that process, hasn’t completed that process.”
While the Court denied the government’s effort to enjoin Bolton from publishing his book, a relatively old Supreme Court case could potentially help the government in a civil lawsuit.
In Snepp v. United States, Snepp, a former Central Intelligence Agency (CIA) agent, published a book about certain CIA activities in South Vietnam without submitting it to the CIA for prepublication review and despite having signed an agreement as a condition of his employment promising that he would “not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency..”
When Snepp subsequently published the book, the government sued him for, among other things, breach of contract, where a federal district court imposed a constructive trust on his proceeds from his book and prohibited Snepp from publishing anything in the future without first submitting it for review. On appeal, the federal appeals court overturned the lower court’s imposition of a constructive trust and limited the recovery to whatever nominal and punitive damages could be proven at trial.
The case eventually made it up to the Supreme Court, which, among other things, re-imposed the constructive trust against Snepp. Specifically, the court explained:
A constructive trust, on the other hand, protects both the Government and the former agent from unwarranted risks. This remedy is the natural and customary consequence of a breach of trust. It deals fairly with both parties by conforming relief to the dimensions of the wrong. If the agent secures prepublication clearance, he can publish with no fear of liability. If the agent publishes unreviewed material in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness. Since the remedy is swift and sure, it is tailored to deter those who would place sensitive information at risk. And since the remedy reaches only funds attributable to the breach, it cannot saddle the former agent with exemplary damages out of all proportion to his gain. The decision of the Court of Appeals would deprive the Government of this equitable and effective means of protecting intelligence that may contribute to national security. We therefore reverse the judgment of the Court of Appeals insofar as it refused to impose a constructive trust on Snepp’s profits.
In other words, given the agreement that Snepp signed, his fiduciary and contractual obligations, and the fact that he failed to comply with these obligations by publishing information about the CIA without obtaining the requisite pre-publication review, Snepp was forced to give up the proceeds/profits from his book.
Bolton’s publisher has asserted that Bolton has cooperated with the pre-publication review and that Bolton has a First Amendment right to tell his story of his time in the White House. However, as reported by Fox News, at the injunction hearing, “the judge indicated that the government’s case against Bolton was ultimately likely to succeed on its merits.” While Bolton could have sued the government, the judge noted, he sought “unilateral fast-tracking” that “carried the benefit of publicity and sales, and the cost of substantial risk exposure” instead. More particularly, the judge stated:
“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.”
Eventually, Bolton will learn whether or not he made the right “bet.”
This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.
Mr. Hakim is a political writer and commentator and an attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications.