WASHINGTON — A federal judge said Friday that he was uncertain how he could grant the Trump administration's request to delay publication of former national security adviser John Bolton's book, "The Room Where It Happened."
"It seems to me, as we used to say in Texas, that the horse is out of the barn," said Federal District Court Judge Royce Lamberth during a two-hour videoconference hearing. "What am I supposed to do?"
Justice Department lawyer David Morrell said Bolton and his publisher have some options before the book's scheduled release on Tuesday.
"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 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 Tuesday before the process was finished.
Charles Cooper, Bolton's lawyer, said the government is 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 book have already been printed, bound and distributed to booksellers throughout the country, with thousand more shipped internationally.
The judge, who did not indicate when he would rule, said 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 required 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 he 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. I don't understand why he didn't sue."
But the judge also asked the government how common it was for senior officials to step in after the usual reviewing official 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, but it filed a revised suit Friday that contained 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 Room Where It Happened," describing President Donald Trump's conversations with foreign leaders and elsewhere portraying the president in an unflattering light. Cooper noted that 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 said he would be conducting a review, out of public view, of the information the government claims is classified.
Even if he denies the government's motion for an order to delay publication, the lawsuit will remain alive. The government also seeks an order seizing any profits Bolton earns from the book. The judge will have to decide whether the book did, in fact, contain classified information and whether Bolton abided by all the requirements for review.