Bolton’s Book a Win for First Amendment, But May Prove Pyrrhic Victory for Author

Richard Shugrue
Creighton Law Professor, Ret.

John Bolton won a victory for freedom of the press recently, but he may have lost his shirt in the process.

Senior Federal Judge Royce Lamberth of the District Court in D.C. refused to grant a temporary restraining order to stop publication of the former national security adviser’s tattletale account of his days working for President Donald Trump.  Prior restraint is still a no-no under the First Amendment., but the judge said Bolton should have waited for written clearance of his manuscript in order to print it.

The book, formally published last Tuesday, had been widely disclosed in virtually every medium known to humankind.  Orders for the 200,000 copies already printed had flooded into handlers of “The Room Where It Happened.”

Judge Lamberth held secret hearings allowing government officials to demonstrate that the book would endanger national security. Bolton contended that he had submitted the manuscript to a four-month intense review and was informed by the official that it was clear for publication. He had not received written clearance, as required by an NDA executed at the time he got the job.

Nondisclosure agreements are generally enforceable unless they are like ones between a Harvey Weinstein and a victim of sexual abuse or are so vague or overly broad that they are legally mush – to use a nontechnical term. Then, too, there are inherent problems with disclosing true national security secrets.

Judge Lamberth, a no-nonsense, old-fashioned conservative, appointed to the bench by President Ronald Reagan in 1987, said that Bolton should have waited for a written OK and, if it didn’t come soon enough to suit him, he could have sued to force the desired result. He didn’t; he gambled and lost, and he may subject himself not only to a forfeiture of cash profits from the book but also to criminal sanctions for violating the secrets law.

In the meantime, scads of avid readers can drool over Bolton’s description of buffoonery in the Oval Office.


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