Yet Lamberth raised repeated issues with the way Bolton ultimately appeared to short-circuit the review process to rush out the brutal account of his 18-month stint working for President Donald Trump.
The memoir, titled “The Room Where it Happened,” is officially set for publication on Tuesday, but physical and digital copies of the book have been circulating in Washington for several days, generating a flurry of unflattering headlines for the White House. And 200,000 copies of the book have been sent to resellers, according to Bolton’s publisher.
Bolton’s book alleges that Trump encouraged China’s construction of camps for its Uighur population, and that he pleaded with Chinese President Xi Jinping to purchase American agricultural products in order to aid his reelection. It also describes Trump’s offer of favors to autocratic leaders and affirms House Democrats’ impeachment evidence that Trump pressured Ukraine to investigate his political rivals in exchange for military assistance. Trump has said Bolton is a “liar,” and multiple Cabinet officials have disputed his version of events.
In Friday’s hearing, Lamberth pressed the Justice Department attorney arguing for the restraining order, David Morrell, to explain what benefit such an order would have at this point given the wide distribution of the book.
Morrell insisted that there would be value in retrieving as many physical copies of the book as possible and in heading off e-book and audiobook versions that have yet to be released.
“This is not an all or nothing proposition,” said Morrell, a deputy assistant attorney general in Justice’s Civil Division. “The government still has an interest in stemming the flow of classified text out of Simon & Schuster and all of those affiliates….and its distribution chain.”
Morrell also said the logistics of implementing an injunction were not really the government’s problem, but Bolton’s since he breached his agreements related to classified information.
“The onus is on Mr. Bolton to figure out how to do this….This is a problem of his own making,” Morrell said, adding that the ex-official should “claw the book back.”
While Lamberth sounded skeptical about his ability to recall the book, he peppered Bolton’s attorney with questions about why the former high-ranking ex-official would unilaterally move to publish without written authorization from the National Security Council.
Lamberth made plain that he thought Bolton acted rashly and in violation of his obligations when he gave the go-ahead for publication of his book in the absence of a formal sign-off from the White House.
When Bolton’s attorney, Chuck Cooper, asserted that Bolton had followed his legal obligations “not just in spirit but to the letter,” Lamberth shot back: “No, he didn’t.”
“He had an obligation….once he invoked that process, he can’t just walk away,” the judge declared, adding, “He didn’t tell the government he was walking away. He just walked away and told the publisher ‘go publish.’”
Lamberth’s posture spells trouble for Bolton when the judge considers the White House’s broader case that Bolton should forfeit the proceeds from his book because it contains highly classified information that could do “exceptionally grave” damage to national security.
Bolton has suggested that politics corrupted the review process, but Lamberth wondered why he didn’t seek judicial intervention rather than simply telling his publisher to send the book to the printer.
Cooper argued that Bolton simply considered the review process complete once the initial reviewer, Ellen Knight, deemed his manuscript free of classified information. All that was left, he believed, was a pro forma written letter, Cooper argued.
But that letter never arrived. Rather, his successor as national security adviser, Robert O’Brien, took over the process and designated a more senior aide to review the book without informing Bolton.
Morrell said Bolton’s decision to bail out on the review process was reckless.
“It is not his role or entitlement to decide when the process is done. That belongs to the government and the check on that is judicial review,” the DOJ lawyer said. “You can’t have an author unilaterally deciding to bail out when they’re unhappy.”
Lamberth, an appointee of President Ronald Reagan, did not immediately rule on the government’s request for a temporary restraining order. Instead, he said he first plans to hold a closed-door, classified session to hear from government officials who have said in secret court filings that Bolton’s book contains classified information.The judge said it is unclear how quickly such a session can be arranged, in part due to protests that put the courthouse into “lockdown” Friday.
The virtual hearing Friday came just hours after Bolton’s move late Thursday night to dismiss the lawsuit entirely, contending that the Justice Department’s legal drive violates the First Amendment.
Bolton argues that the administration’s claim of classified material is a fig leaf for its effort to punish him for revealing embarrassing information about Trump.
While lawyers and high-ranking national security officials have submitted to the court grave warnings about the national security damage the book could do, Trump has made a series of sweeping statements that laid bare his desire to suppress the book merely for breaching what he views as a duty of confidentiality owed by White House aides.
While there is a legal framework to protect national security secrets, there is no obvious legal mechanism to impose blanket secrecy on former White House officials, although Trump seems to believe such an obligation can be legally enforced.
“Conversations with me, they’re highly classified,” Trump told reporters at a photo op Monday with Attorney General William Barr. “I told that to the attorney general before. I will consider every conversation with me, as president, highly classified.”
Trump’s complaints about Bolton divulging private conversations have also been somewhat muddled by a series of claims by the president that the book is largely or completely fabricated. In a tweet Thursday morning, he called Bolton’s tome “a compilation of lies and made up stories.”
Lamberth seemed to pick up on Trump’s agitation about the Bolton book, asking Morrell during the hearing whether the president had waded into the review process by directing officials to claim certain matters were classified.
“Your honor, I have not spoken to the president. I’m not aware of that,” the DOJ attorney said.
Much of Bolton’s move to dismiss the case against him focused on DOJ’s claim that his book contains highly classified “compartmented” intelligence, which would trigger a higher standard of review. Bolton says he took great care to exclude any classified information— but especially so-called SCI material — and submitted to a painstaking review with Knight, to be extra careful.
Morrell also conceded under questioning from Lamberth that at least some of the information the government says is classified in the book was classified after the initial review.
On Friday morning, the Justice Department acknowledged that the newly installed NSC intelligence official tasked with the additional review of Bolton’s book — Michael Ellis — hadn’t been formally trained as an “original classification authority,” a requirement for officials who make classification and declassification decisions. Rather, he obtained his training on June 10, the day after he completed his review of Bolton’s book and then retroactively reaffirmed his earlier determinations that the book contained additional classified material.
Bolton’s lawyer noted the disclosure to Lamberth. “This was the day after his declaration says he completed his review. How about that?” Cooper asked.