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- American lawyer and diplomat
John Bolton, Donald Trump’s former national security adviser, wanted to write a book. He knew that the White House would do everything it could to stop him. He hired a flashy white-shoe law firm to handle the prepublication review process required by the nondisclosure agreement he signed when he got his security clearance. As expected, the White House weaponized the prepublication review process against him to keep him from publishing. If he published without approval, it said, he could face severe legal consequences.
Then his lawyer, Chuck Cooper, wrote a Wall Street Journal op-ed this week intended to put public pressure on the White House. In it, Cooper volunteered that Bolton had violated both his NDA and perhaps a few criminal laws, including the Espionage Act. Now, even if Bolton’s book is never released, he is facing stiff penalties. As unforced legal errors go, that’s a doozy.
Here are the two sentences that could cost Bolton a big stack of money, or worse: “He instructed me, as his lawyer, to submit the manuscript to Ellen Knight, the NSC’s senior director for prepublication review of materials written by NSC personnel. I sent Ms. Knight the manuscript on Dec. 30, days after the House had impeached the president and amid speculation that the Senate would subpoena Mr. Bolton to testify.”
See, here’s the thing about prepublication review: “Publication” means giving potentially classified information to anyone the government has not approved to receive it. Bolton and his lawyer committed one of the classic blunders that a national-security lawyer would have seen coming a mile away. Simply put, someone who has signed an NDA and received a clearance has to put anything they want to write through prepublication review before they can give it to anyone. Even their lawyer.
Lawyers who represent intelligence personnel drill this into clients at the very beginning. I regularly have my clients—especially the whistleblowers—write everything they want to tell me and send it to the prepublication review office before they tell me a single word of it. It’s a major hassle, and sometimes it alerts the agency that a lawyer is involved, but it keeps them from losing their clearances or their freedom. Some agencies—like the Central Intelligence Agency—will outright refuse to even discuss a prepublication review matter with anyone but the author, let alone allow the lawyer to submit the document.
The reason for this is simple. To an intelligence professional, there is little distinction between giving classified information to the general public and giving it to your priest. Once classified information is known by someone the government cannot control, it is in the wild and the assumption must be that it will be further disseminated. A security breach is a security breach. A television audience and a private lawyer are equally unauthorized to receive the information. It is why former CIA Director David Petraeus pleaded guilty to mishandling classified information simply because he gave it to his biographer.
“But what if Bolton’s lawyer has a clearance?” This was one of the key questions raised when it was revealed that former FBI Director James Comey had given a copy of a memo to a lawyer who apparently held a clearance at the time. The simple answer is, it doesn’t matter. In order to be approved to see any specific piece of classified information, a person must both have the appropriate level of security clearance and the “need to know” that particular piece of information. “Need to know” is roughly described as the need to know that information to perform the duties for which you were given the clearance. It is why people on the CIA Indonesia Desk cannot go read classified briefings on Poland; they do not have the requisite “need to know.” So even if Bolton’s lawyer had a clearance to handle classified information in some other context (as some private national security lawyers do), he would only be able to handle Bolton’s manuscript if he had been specifically approved for that specific information.
I chose the word “handle” here instead of “read” because it is currently unclear if Bolton’s lawyer actually read the manuscript or simply forwarded it along to the NSC unopened, but this is a distinction without a difference. The mere act of giving the manuscript to his lawyer was sufficient to violate Bolton’s NDA, regardless of whether or not his lawyer read it. Moreover, as far as criminal prohibitions go, the law does not always even require that the information be given to anyone, let alone given to anyone who read it. As one CIA contractor learned, merely taking classified information home and not sharing it is still a violation of the law. If you can be prosecuted for keeping a classified document in your garage, you can be prosecuted for giving it to your lawyer.
Which brings us to the key argument: Bolton says the manuscript contained no classified information, while the White House says it did. This might be enough to allow Bolton to defeat an Espionage Act charge, but that’s not a sure thing. Some aspects of the Espionage Act do not require active knowledge that information is classified, but instead include a lesser standard which is best summed up as “they should have known better.” And it is extremely difficult to defeat an Espionage Act charge based on the argument that “the information should not have been classified.” It has been done, but it is exceedingly rare and requires almost a perfect storm of mistakes on the government’s part. The reason is that courts almost religiously defer to the executive branch on classification matters, so a judge will almost always overrule a defendant who challenges the classification of information, primarily because the actual scope of what can be classified is much broader than most people realize. Additionally, it should not be overlooked that the Espionage Act does not actually mention “classified information,” but only “national defense information,” which does not always have to be classified.
Even if the government elects not to pursue criminal charges against Bolton, though, he is not out of the woods yet. In fact, the violation of his NDA is not even a question of criminal law; it is a question of contract law. The most that the government can do in civil court to someone who violates an NDA is sue him for breach of contract, a power that it employs freely. After winning such a lawsuit, the government is entitled to all of the author’s proceeds from the publication, past and future. The author is no worse off than he was before the publication, but he is no better off either, and all his work will net him zero return.
Most importantly, even if Bolton was correct and his manuscript contained no classified information, that was simply not his call to make. Put simply, someone who writes a piece of information that he does not believe to be classified may not always be in a position to know for a fact whether or not it is classified. He may have a good faith belief that he is simply relating an unclassified fact, but he may not realize that by writing it he is inadvertently revealing classified information about another government project he knows nothing about. This is obviously not always—or even often—the case, but there is no practical way for any particular author to know whether it is or is not the case in his particular situation. Complicating the matter further is the fact that the agency may decide to retroactively classify information the author believed to be unclassified, as occurred with Comey and former Secretary of State Hillary Clinton. Evidence that the government retroactively classified previously unclassified information might be enough to defeat a criminal charge, but it would not help an author in civil litigation.
Because of this, the Supreme Court has held that the government can impose an NDA which requires everyone with a security clearance to first obtain the agency’s permission through prepublication review before publishing anything related to his work. As a result, someone can be successfully sued by the government for publishing completely unclassified information, simply because they did not use the process first to ensure that it was unclassified. There have been attempts to overturn this jurisprudence in light of the arbitrary and inconsistent manner in which the government actually conducts prepublication review, but so far it remains the law of the land. The system may be broken, but it remains the system. The only current way around this is to sue the government first under the First Amendment, which Bolton has so far chosen not to do.
It remains an open question whether Bolton could be forced to turn over proceeds of the book if he doesn’t actually publish it until the prepublication review is complete, amd if his only violation of his NDA was giving the manuscript to his lawyer (and probably his publisher), but given that his lawyer has stated that he will go through with the publication regardless, this question will probably not be answered, at least not in this case.
However, Bolton should not be complacent in this matter. He may have an “in for a penny, in for a pound” mindset, especially if he reads this op-ed, but he should be fully aware of the legal jeopardy that his lawyer’s op-ed has placed him in. His lawyer should also be concerned, since the last time a lawyer advised his client not to worry about prepublication review, his client sued him for malpractice after losing all the proceeds of his hard work.
For Bolton’s sake, I hope the op-ed was worth it.