As chances grow dim in the Senate that the impeachment trial of President Trump will include witnesses, three questions loom over the proceedings: What did John Bolton know, when did he know it, and when will we hear Bolton’s story?
That story, according to The New York Times, involves Trump enlisting Bolton “to help with his pressure campaign to extract damaging information on Democrats from Ukrainian officials.” For instance, Bolton’s manuscript reportedly reveals that last May, Trump directed Bolton to call Ukrainian president-elect Volodymr Zelensky to guarantee Zelensky would meet with Rudy Giuliani later that month to discuss investigations into Democrats. The manuscript also reportedly states that Trump gave that directive in the Oval Office and in front of acting White House chief of staff Mick Mulvaney and White House counsel Pat Cipollone, as well as Mr. Giuliani.
Bolton is operating under multiple non-disclosure agreements. The typical agreement for high-level national security officials allows the Department of Justice to ask a court to block the publication of Bolton’s book if the government believes the manuscript reveals classified information.
In a January 24 email to the White House, Bolton’s lawyer, Charles Cooper, stated that Bolton does not believe that any information in the chapter of his manuscript “dealing with his involvement in matters relating to Ukraine” “could reasonably be considered classified,” and asked the White House for “the results of your review of that chapter as soon as possible.” As of yesterday, Cooper publicly announced that he had not received any response. Cooper did not immediately respond to requests for comment today.
We spoke to Mark Zaid, an attorney specializing in national security-related issues, to put the White House’s recent letter to Bolton in context and understand whether, as Politico reported, Trump could try to prevent publication of Bolton’s book until after the election. Zaid has represented former national security professionals in the prepublication review process Bolton is now undergoing. He also represents the whistleblower whose complaint touched off the impeachment investigation.
Zaid said that of the cases he’s aware of where normal protocol was followed, Bolton is at higher risk of having that provision enforced through the review process than anyone he’s ever seen. According to Zaid, here’s why:
- In the national security and intelligence communities, relatively few people are allowed access to “sensitive compartmented information,” a narrow subset of classified information. Bolton is one of those people.
- Anyone who’s received that kind of information from more than one agency is supposed to submit a draft book to the last agency that held his clearance. But that agency doesn’t necessarily “have equities” in all classified information at issue. In Bolton’s case, for example, the National Security Council is not free to declassify information that came from State or the CIA; therefore, the standard practice is to distribute a draft to all potentially affected agencies. That means there are multiple stakeholders who commonly have access to draft manuscripts — and multiple potential sources of mischief.What’s more, Zaid said, “It would not be surprising to me, nor inappropriate, if the contents of the manuscript, were briefed to some White House lawyers and other political appointees, up through the President of the United States.” Bolton — who wrote a 2008 book about his time as UN Ambassador — should understand how this process works, and accusations from his camp of bad faith by the White House in copying the manuscript are either disingenuous or reflect a lack of understanding of that process.
- Zaid understands why people might perceive the recent White House letter as a threat, but he does not see it that way. He said the letter validates advice he would give any client in Bolton’s shoes — and he says that agencies sometimes send sharp warnings to former administration officials writing books. He cited his own representation of Secretary Mattis’s former speechwriter, retired Navy Commander Guy Snodgrass, who received a “nasty” letter from the Department of Defense even before he submitted his draft and later sued DOD.
- It’s not typical for an agency to write an interim response like the White House’s letter to Bolton. But it’s also not unheard of, especially for someone at Bolton’s level. As with all things, Zaid said, “who you are makes a difference in this process.”
- Under the government’s standard non-disclosure agreement for those with access to sensitive compartmented information, Bolton is entitled to review within 30 working days. But it’s rare that agencies can comply in that time frame, especially where multiple agencies are involved. While former cabinet secretaries and cabinet-level officers’ books are “always expedited,” Zaid has advised clients six months is a reasonable period to wait before putting pressure on a reviewing agency. Here, however, Bolton, sent his draft to the White House on December 30, 2019 — and is pushing the White House hard to complete its process within the 30 working days. Zaid described that as “unreasonable.”
- The law is black and white: Without prior written authorization, one may not reveal classified information to any person without an appropriate security clearance. There are no exceptions. But in practice, agencies get that guys like Bolton 1) share their drafts with multiple people, including publishers, literary agents, lawyers, and even ghostwriters, before submission; and 2) do not take adequate care to protect classified information in drafting on personal computers/networks. Agencies also contribute to the problem because they routinely tell authors, “Don’t send us an early or partial draft or an outline. We want your completed manuscript.” And agencies even encourage authors to submit their manuscripts electronically because it makes it easier for them to disseminate the draft to reviewing personnel.
- When an agency finds what it considers classified information in a draft, it typically instructs the author to make X deletion or Y redaction and delete the classified material from their computer. “They should freak out,” Zaid noted, about all the people who have or could have seen that information along the way. But historically, the practice has been that as long as classified information ultimately comes out of the book as published, it’s accepted. Agencies understand that in practical terms, people like Bolton would have difficulty writing books without disclosing what the government believes to be classified information, and therefore, technically breaking federal law.
- But the gap between the law and practice is vast. And it puts Bolton at risk, especially given the nature of this president and his allies. Just by sharing his draft in the ordinary course of writing and editing, Zaid says, Bolton may already have violated the law. And the risks to Bolton for that include: 1) long delays in the review process; 2) Trump and/or DOJ suing to enjoin publication; 3) seizure of his book advance for breach of the non-disclosure agreement; 4) revocation of his security clearance; and 5) criminal prosecution. Zaid expects career people would complain that going after Bolton for prior disclosures “would open a Pandora’s box” — but Zaid doesn’t rule it out with this White House. At the very least, the White House’s last letter puts Bolton on notice that he needs to be very careful going forward.
- When asked what he would do if advising Bolton, Zaid said he would file his own lawsuit now. Even though the White House says “[t]he manuscript remains under review,” Bolton has First Amendment rights — and the law is clear that a plaintiff does not have to exhaust any administrative process to vindicate those rights in court.
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