What appeared to be a White House bid to stop former national security adviser John Bolton from publishing his book, which may have explosive claims about his interactions with President Trump, is really just a standard letter regarding classification review, according to legal experts, albeit one launched into the middle of a high-stakes political struggle.
On Wednesday, multiple news organizations reported that a National Security Council official had written to Bolton’s attorney one week ago stating that his forthcoming book contained information classified at the top-secret level and that it “may not be published or otherwise disclosed without the deletion of this classified information.”
While the letter may not be a direct bid to stop publication, it is still a significant development in the confrontation between the White House and Bolton, with implications for the ongoing Senate impeachment trial, since it raises the issue of what the former national security adviser could be allowed to divulge publicly.
“Based on our preliminary review, the manuscript appears to contain significant amounts of classified information,” wrote Ellen J. Knight, the NSC senior director for records, access and information security management. “It also appears that some of this classified information is at the TOP SECRET level.”
In the event that Bolton appears as a witness in the impeachment trial or his manuscript is subpoenaed, Knight’s determination that his manuscript contains significant classified material could buttress calls from Republican senators to conceal his information from the public.
Bolton late last year had submitted his manuscript for the White House’s prepublication review process, which gives the government the opportunity to redact classified information. His attorney, Charles J. Cooper, wrote in a Dec. 30 letter that “Ambassador Bolton has carefully sought to avoid any discussion in the manuscript of sensitive compartmented information or other classified information.”
Some of the manuscript’s contents burst into public view in recent days after the New York Times reported that Bolton had written, among other things, that Trump had ordered the withholding of foreign aid to Ukraine until the country acceded to his request for investigations into Joe Biden and his son Hunter and the hack of a Democratic National Committee server during the 2016 election. That alleged quid pro quo is now a central issue in the impeachment trial.
The first New York Times story about Bolton’s manuscript appeared three days after the date of Knight’s letter.
Initial reports about Knight’s letter implied that the White House had threatened to keep Bolton from publishing his book in any form. If true, that would raise the specter that the White House might try to use untested arguments based on executive privilege or other doctrines to stop the presses at Bolton’s publisher altogether, setting up a major First Amendment conflict.
However, when the text of Knight’s letter came to light, attorneys familiar with the federal government’s prepublication review process described it as a fairly routine communication in the management of classified information.
“Under well settled existing US law, the only info that US govt can censor in prepub cases is that which is classified,” Mark S. Zaid, an attorney who handles national security issues, wrote in an email to Yahoo News, using a shorthand for prepublication review.
Zaid represents the anonymous whistleblower whose complaint last year sparked the ongoing impeachment proceedings.
“Of course, this is why you submit for prepub review and go through the process lawfully,” Zaid’s partner, Bradley P. Moss, wrote on Twitter after the letter’s text had emerged. “If you publish without getting review approval, and they find classified info, you face criminal or civil liability.”
While Knight’s letter received significant attention due to the political environment surrounding Trump’s impeachment trial, Moss told Yahoo News it was not an unusual development. “I’ve seen countless similar letters,” he said.
The White House did not immediately respond to a request for comment about the letter.
Responding to a question in the Senate impeachment trial Wednesday afternoon about whether the White House has sought to block Bolton’s book, Trump’s attorney Patrick Philbin criticized initial reports about the Knight letter, saying that “there was some misinformation put out into the public realm earlier today.” Philbin then read the Knight letter to the senators.
Government employees with security clearances are required to sign an agreement not to divulge classified information and not to publish any information relating to their work without prior clearance. There are criminal penalties for mishandling classified information; moreover, if clearance holders fail to submit to the prepublication review process, the government may seize the proceeds of their books or other publications.
The Supreme Court upheld these agreements in a 1970s case, Snepp v. United States, allowing the government to seize the proceeds of a book published by a CIA agent without the agency’s approval. The issue was revisited last fall when excerpts of a book by former CIA case officer Amaryllis Fox appeared, containing information about the CIA’s methods that the agency usually seeks to redact, including its ways of communicating with sources. Fox reportedly had not submitted her manuscript to the prepublication review process before it was published; it’s unclear whether she will face any civil or criminal penalties.
While it’s still unclear what exactly Bolton says in his book, it’s clear that it will not paint Trump in a good light. On Wednesday, House Foreign Affairs Committee Chairman Eliot Engel disclosed for the first time that Bolton had encouraged him and his committee in a private phone call to look into the removal of Ambassador Marie Yovanovitch from the U.S. Embassy in Kyiv. The call occurred on Sept. 23, 2019, according to Engel, a few weeks after Bolton left his post as national security adviser, and at a time when the investigations prompted by the whistleblower complaint were ramping up.
Bolton “strongly implied that something improper had occurred around her removal as our top diplomat in Kiev,” Engel said in a statement.
Presumably those details and others are in the book, which according to its Amazon page is due out in mid-March. But the prepublication review process could frustrate his publisher’s desire to meet that date.
“Bolton still has to wait until the manuscript is ‘approved,’” Zaid told Yahoo News in a text message. “In my 25 years of experience, my clients often spend 1-3 years waiting for approval, but senior officials often see much quicker reviews, although the books usually aren’t negative.”
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