A federal judge declined the Justice Department's request for an order delaying publication of former national security adviser John Bolton's tell-all book about his 17 months in President Donald Trump's administration.
In a 10-page order, U.S. District Court Judge Royce Lamberth sharply criticizes Bolton and while he suggests that the national security concerns may indeed be valid, he rejects the government’s argument that an injunction would be effective at this point given its already-wide circulation and discussion in the media.
“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. But these facts do not control the motion before the Court. The government has failed to establish that an injunction will prevent irreparable harm. Its motion is accordingly DENIED."
Trump responded quickly on Twitter with posts denouncing his former national security adviser. The president said he agreed with a political consultant who called Bolton “a despicable man who failed in his duty to protect America.”
Bolton "broke the law by releasing Classified Information (in massive amounts). He must pay a very big price," Trump said.
Judge Lamberth had signaled during a court hearing Friday that he would likely rule against the government.
"As we used to say in Texas, that the horse seems to be out of the barn," he said.
Charles Cooper, Bolton's lawyer, said the government was asking Bolton to do "something he is utterly powerless to do. The book has already been released. The speech cannot be unspoke."
In a written submission, he said more than 200,000 copies of "The Room Where It Happened" have already been printed, bound, and distributed to booksellers throughout the country, with thousand more shipped internationally.
Justice Department lawyer David Morrell said during the hearing that Bolton and his publisher had some options.
"There's still an interest we have in limiting further dissemination, such as with audible books or e-books and any new printed copies," he said. "The onus is on Mr. Bolton to figure out how to do this. He created his mess."
The Justice Department filed a lawsuit Tuesday and sought an emergency motion on Wednesday, arguing that Bolton was required — because he had a top level security clearance during his government service — to wait until the White House finished reviewing the book for classified information. Instead, the suit said, he and his publisher pushed ahead and scheduled the book's release for June 23 before the process was finished.
The judge said during the hearing that a central issue is what kind of approval Bolton was required to get from the classification review process before going ahead with the book.
Cooper said he was obligated only to wait for a White House official's confirmation that the book was free of classified information, which Bolton received in April. But the White House then launched another review, by a more senior official, which Cooper described as "a transparent effort to prevent Ambassador Bolton from revealing embarrassing facts about the president's conduct in office."
Lamberth pushed back on Cooper's claim that Bolton did all that was required of him. "That's not true. He didn't get written authorization. He just went ahead," he said.
But the judge also asked the government how common it was for senior officials to step in after the usual reviewing officer didn't find anything classified.
"I'm not aware of higher level review like happened here," Morrell conceded, "but this is an extraordinary set of facts involving sensitive foreign policy matters during the administration he served."
Bolton may have been required to get written permission if the book contained a type of classified material known as SCI — sensitive compartmented information. The government's lawsuit filed Tuesday did not make such a claim about the manuscript, but it filed a revised suit Friday that did contain the allegation. Cooper suggested during the hearing that the White House may have added that classification after the initial review was concluded in April.
"I need to look at when that stuff was classified," Lamberth said.
Mark Rasch, a former Justice Department espionage prosecutor, said the issue of when the material was classified as SCI is critical. "If it wasn't SCI when Bolton received the approval, he would have been entitled to publish."
Cooper has said the government seeks to eliminate passages in the book describing Trump's conversations with foreign leaders and elsewhere portraying the president in an unflattering light. He noted that President Trump has repeatedly pressed for an order blocking the book and once said, "I will consider every conversation with me as president highly classified."
Lamberth conducted a review late Friday, out of public view, of the information the government claimed is classified. Although the judge declined to delay the book's publication, the government's lawsuit remains alive, partly because it also seeks an order seizing any profits Bolton earns from the book.
Lamberth will have to decide whether the book did, in fact, contain classified information and whether Bolton abided by all the requirements for review.