Bolton's Pyrrhic Victory

John R. Bolton is in for it, big time.

Yes, he "won" when District Judge Lamberth denied the Government's request for a temporary restraining order and preliminary injunction against the distribution of Bolton's book, The Room Where it Happened. But a review of the Memorandum Order issued on June 20, 2020 shows that, for all intents and purposes, Bolton's is the classic Pyrrhic victory.

As Judge Lamberth wrote, "[w]hile Bolton’s unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy." This is because, as the court put it, 

By the looks of it, the horse is not just out of the barn—it is out of the country.

Counsel for the government still press for an injunction.

This was because the publisher had printed and shipped over 200,000 copies of the book all over the world, release of the book was scheduled for Tuesday, June 23, 2020, and details of the book had been widely publicized.

Why a Pyrrhic victory? Because the court found that Bolton committed two wrongs: first, he went ahead, "prematurely" and "unilaterally," with the publication of the book without receiving final approval from the Government that the book did not contain classified information, in violation of pre-hiring agreements he signed; second, the court, upon privately ("in camera") reviewing the Government's evidence, found that "Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."

The court nicely summed up what it believed Bolton's strategy to be:

Bolton could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion. Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. 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. 

Yes, the court said it, boldly and simply: Bolton has exposed himself to criminal liability. And who would take this bet: that Trump and Barr won't get Bolton indicted, and fast?

So much for wretched Mr. Bolton. 

What about the legal aspects of the denial of the TRO?

First, it is a win for free speech (or at least not a loss), unless one believes that the Government has no right to remedy the publication of classified information. But even the amicus curiae briefs filed against the Government's motion did not argue that point, instead arguing, correctly, that governmental attempts at prior restraints are subject to exacting scrutiny and should be denied except in "exceptional cases." And the court cited caselaw that stated that "First Amendment rights are preserved so long as restrictions protect a substantial government interest unrelated to the suppression of free speech, and the restriction [is] narrowly drawn to restrict speech no more than is necessary to protect the substantial government interest."

Second, it clearly rebukes the Government. The issue on which the court decided not to grant the TRO was not that the book did not contain classified information, but that the Government could not show that the issuance of the TRO would "prevent irreparable injury" (one of the four tests the Government needed to satisfy to obtain the TRO) because, as the court put it, "the “horse is already out of the barn.” The incompetent Trump Justice Department first sought a TRO less than a week before the public sale of the book in bookstores, virtual and physical, around the world, with well over 200,000 copies of the books printed and shipped, ready for release, and it had been widely reviewed and quoted. In other words, if there were, in fact, irreparable injury, it had already occurred when the Government sought the TRO, and so a TRO could not prevent injury that had already occurred.

Third, it is not the last word on the legality of a TRO in circumstances such as these, or even, one would think, in this case. This post is being written on Saturday, June 20. Will the Government seek an immediate appeal to the District of Columbia Circuit, and, if so, will that court issue a TRO, even for a matter of a day or two, and remand to the District Court to consider this or that legal issue? No mere lawyer can predict what The Trump and Bar Law Firm will do, or whether the appellate court would somehow be able to overcome the fact that the TBLF twiddled its thumbs for months before finally seeking a TRO. I would bet not, and that Trump will exact his revenge against the perfidious Mr. Bolton by getting him indicted.

Fourth, it is not the end of the case. The Government originally sued to enjoin Bolton from going forward without completing pre-publication review, and to impose a constructive trust on any profits received from publication. Three long days after filing the complaint, the Government amended its complaint to seek 

an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened because he has not completed prepublication review and because it contains classified information; to instruct or request his publisher, insofar as he has the authority to do so, to further delay the release date of The Room Where it Happened until completion of the prepublication review process; and to instruct or request his publisher, insofar as he has the authority to do so, to take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party in a manner acceptable to the United States.

Having, predictably, lost the TRO/preliminary injunction battle, the Government can still obtain a constructive trust against the profits Bolton earns from book sales, and there is no reason to see why it would not pursue that relief.

Finally, there is always the prospect of a criminal case captioned United States of America v. John R. Bolton. Pyrrhus, move over.