- Donald Trump's law firm, and by that I of course mean
the US Justice Department, is suing to block the
publication of John Bolton's book "The Room Where it Happened." Yes for the title of the book, Bolton and his publisher
ripped off the lyrics from the musical Hamilton. Whereas Hamilton tells the inspiring story of the founding of America, Bolton's book tells the tale of a mustachioed government official who has damning information about the President of the United States, but writes a book instead of testifying at the president's impeachment trial. Now with a book being released, President Trump is calling Bolton names while Bolton is doing dumb things that will probably make it
impossible for him to get paid from proceeds of the book. - There really isn't any guiding principle that I was able to discern
other than what's good for Donald Trump's reelection. - Which makes one wonder
why he didn't testify in the impeachment trial at all, and instead waited to put
it all into a book itself. There are no heroes here in the story, but there are important questions at the heart of this dispute. Did Bolton willfully disclose
classified information that could compromise national security? Or did the Trump administration abuse the classification process to protect Trump's personal interests? Or is the answer both? We simply don't know exactly what happens during the pre-publication
review process of Bolton's book. And as I explained in another video, that's exactly why Legal
Eagle has filed a FOIA request for information about the
pre-publication review of Bolton's book, and that's also why I'm filing
suit against the White House. Because the public has a
right to know what happened and we hope to shed some light on it through the public records requests. But in this video, I wanna
break down the DOJ's lawsuit and the motion it filed for an injunction to stop publication of John Bolton's book. And I'll also let you in on a big secret. I also filed a petition
asking the government to declassify all of the things they just told the court
our government secrets. Hey Legal Eagles, it's
time to think like a lawyer because John Bolton is
trying to tell his story and the government is trying to stop him. The first legal question
posed by the DOJ's lawsuit is whether John Bolton violated his non-disclosure agreements by disclosing classified
and sensitive information. The government wants two
things from this lawsuit. Number one, it wants an injunction against the planned June 23rd
publication of Bolton's book "The Room Where it Happened:
A White House Memoir". And two, a constructive trust that would give the
United States the right to all of Bolton's profits from this book. So let's break this down piece by piece. First, let's talk about the NDAs, the non disclosure agreements. The government is suing
Bolton for breach of contract. According to the complaint, the contracts in question are
non-disclosure agreements, otherwise known as NDAs that Bolton signed on April 5th 2018, when he entered government service as the National Security Advisor. Despite what you may have read, it's not unusual for
National Security employees to sign NDAs. In fact, it's generally required. The government started requiring employees to sign secrecy agreements in 1947. Today, every US intelligence agency imposes a lifetime
pre-publication review requirement on at least some subset
of former employees. The agreements have generally
prohibited employees from publishing manuscripts without first obtaining
the agency's consent. In 1988, divided Supreme Court decided Snepp versus United States which affirmed the imposition
of a constructive trust on proceeds earned by a former CIA officer who would publish the book
without submitting it for review. So when a former employee
wants to write a book, they have to go through
this pre-publication review. They have to give the
manuscript to the government so that they can review it for potentially sensitive
or classified information. And when a person secures
pre-publication clearance, he or she can publish without liability and keep all the profits from that book. But in a situation where someone like Bolton
publishes without clearance, the government can ask that the courts establish
a constructive trust, meaning that the government
gets all of the money that the person would have made
because of the publication. Bolton signed two agreements which are now the subject of this lawsuit. In the first NDA, Standard Form 312, Bolton agreed that he must never quote, divulge classified information
to anyone, end quote, unless he either quote,
officially verifies that the recipient has
been properly authorized by the United States
government to receive it, or he's received prior written
notice of authorization to divulge it from the
United States government. Specifically the entity responsible for that information's classification, which sometimes can get dicey when you have people in
different departments, all of those different departments may have to conduct some sort
of pre-publication review. And generally speaking, that means that the employee
needs permission first. The second NDA, Form 4414,
covers Bolton's access to a more sensitive subset
of classified information, commonly known as sensitive
compartmented information or SCI. You can imagine that as the
National Security Advisor, Bolton had access to the most sensitive government
information available. The terms of his NDA require Bolton to submit to a security review by the National Security Council, any writing that contains SCI or activities that relate to SCI. Bolton also agreed that he would quote, not disclose the contents
of any SCI-related material with anyone who is not
authorized to have access to it until he received written
authorization from the quote, department or agency that last
authorized my access to SCI that such disclosure is permitted. Okay, so now that we know Bolton has to go through this
pre-publication review before he can disclose
anything that is classified or that is SCI or even
related to SCI to anyone, what did he do with his manuscript? Well, when Bolton left his
employment in September of 2019, he wrote a manuscript which he believed did not
contain classified information. On December 30th 2019, Bolton's lawyer submitted the manuscript for pre-publication review. The manuscript was sent to Ellen Knight, the NSC Senior Director for Records Access and Information Security Management. This is the NSC entity that usually does classification
and pre-publication reviews for the National Security Council. Less than a month later, Knight sent the manuscript back to Bolton having identified a number of things that she claimed were classified. This started a three-month
process between Bolton and Knight in which they negotiated
many of the changes to the manuscript in order to
assure that in Knight's view, it wouldn't contain any
classified information. And one of the quirks about the pre-publication review process is that you're technically
not even allowed to show the manuscript to your lawyer. I mean, you can but
you're not supposed to, they don't have the
same kind of clearances, and you can get in big
trouble if the lawyer is the one that's negotiating
it instead of the client. So often, these people are
completely unrepresented, as they are going back and
forth in negotiating things with the government. And in this case, Bolton
and Knight met several times and also corresponded in writing. By April 27 2020, Knight quote, had completed her review and was of the judgment
that the manuscript draft did not contain classified information. Knight told Bolton her review was final and all they were waiting for was the official letter confirming the end of the pre-publication review. But then the current
National Security Advisor, Robert O'Brien became concerned that the manuscripts still
contain classified information even after Knight's review. O'Brien allegedly asked Michael Ellis, the NSC's Senior Director
for Intelligence, to do another review of the manuscript. Unlike Knight, Ellis is
a political appointee. Ellis was also allegedly
involved in the decision to classify President
Trump's July 25th 2019 call with Ukrainian President
Volodymyr Zelensky in the White House's most secure
classified computer system. Remember that whole thing
about the Ukrainian scandal? Apparently Ellis was involved
in potentially corrupt action to hide the transcript of that call with other members of the administration. It feels like a lot
has happened since then but you might recall that
that call with Zelensky later became an issue in President Trump's impeachment trial. At any rate, by June 8th, the
government had reversed course and informed Bolton that the manuscripts still
contain classified information. But the government did not
identify the information that it contended was secret. On June 10th, Bolton's
lawyer told the government that in Bolton's opinion, it did not continue any
prohibited information and that the book had been printed and shipped to distributors. On June 16th 2020, the NSC
sent Bolton a marked copy of the current version of the manuscript identifying passages that
Ellis thought appeared to contain classified information. The book as of the time of this video, was scheduled for publication
on June 23th 2020. So given that John Bolton is
trying to publish his book before the end of the
pre-publication review process, whether that process was
conducted in good faith or not, it's not surprising that
the Department of Justice is suing Bolton for
breaching the two NDAs. And the government is asking
for four kinds of relief. Number one, enjoining
Bolton from taking any steps towards publicly
disclosing the information in "The Room Where it Happened" without first obtaining
written permission. Two, requiring Bolton to delay publication and instruct his publisher to do the same. Three, imposing a constructive trust that would give the
United States the right to all the profits that
Bolton gets from his book. And four, declaring that the court's order prohibiting disclosure of the information will bind the publisher, Simon & Schuster, and any other party in the
commercial distribution chain, even if they aren't actually
named in the lawsuit. Now, violating an NDA creates
a breach of contract claim, and a breach of contract claim in the national security context
is a lot more complicated than when a company sues an ex-employee for violating an NDA. But what they do have in
common is the need to determine what information is within
the scope of the agreement. The government has the burden of proving that the book contains information that was within the scope of the NDA. And pre-publication review covers more than just classified information. Many agencies require
unclassified information to be redacted as well. And since the National Security Council just does this on an ad hoc basis, there's no reason to believe that they limited their redactions to simply classified information, so who knows what they
required John Bolton to remove from his book. But under Executive Order 13526, what is covered by the NDA
is incredibly expansive. Under Section 1.1, the
government must show that the unauthorized
disclosure of information in Bolton's book, quote reasonably could be
expected to result in damage to the national security, end quote. This means that the government must prove that the information has
been properly classified. And the term national security is defined to include the national defense or foreign relations of the United States. This is a pretty vague term that could encompass almost anything and the court in the Bolton case will need to review the information
to determine if the agency was acting in good faith when
it classified that material. But according to a case from the Fourth Circuit Court of Appeals, a court will give
deference to the government but at the same time, it
has to review the material to ensure that the reviewing
agency had a good reason to classify that particular information. The court observed in that case that courts should require that agency explanations
justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification. They should not rely on a
presumption of regularity if such rational explanations are missing. The court anticipated that in
camera review of affidavits, followed if necessary by
further judicial inquiry, will be the norm. Courts must assure themselves that the reasons for classification are rational and plausible ones. And in a footnote to that decision, the court suggested that
the government may be held to a higher standard if an
agency seeks an injunction against publication of the censored items. For better or worse, no court has considered
the injunction issue yet and generally speaking, courts are loath to give what's
called a prior restraint, where the government prevents
speech from being made before that speech has made. That generally carries
with it the highest burden under the First Amendment. But can the government prove
that it made a rational and plausible classification
decision in Bolton's case? It's possible. The biggest factor against the government is that Knight told Bolton that the book did not
contain classified material. However, at that time, he hadn't received final
clearance for publication and sometimes government employees, sometimes even the same ones, change their mind about these things. And so let's look to the
actual terms of the NDAs that Bolton agreed to sign on to. When Bolton signed Form 312,
he agreed that he was uncertain about the classification
status of any information and therefore, he must get agency clearance
before disclosing it. Bolton will argue that
he was not uncertain about the classification status
of the material in his book. Number one, because he knows the material, number two, he got the
green light from Knight. However, this presents
a problem for Bolton because the government
alleges that Bolton is the one who decided to classify
some of the material that he now discloses in his book. It's possible that Bolton will argue that he actually improperly classified some of that information which of course makes him look pretty bad. But if the government is correct, then Bolton breached his
obligations under Form 312, not to disclose material without pre-publication
review and authorization. But it's also possible that the pre-publication review process was a complete sham done
by political appointees for political reasons to punish Bolton as opposed to protecting the disclosure of actually classified information. But turning to Form 4414,
Section Five of the NDA states, I understand that the purpose of the review described in paragraph four is to give the United States
a reasonable opportunity to determine whether the
preparation submitted pursuant to paragraph four sets forth any SCI. He also must get
pre-clearance of any writing that describes activities
that relate to SCI. Since Bolton did not get
written authorization before publishing, the government has a good
argument for constructive trust. And constructive trust
is a lot easier to get instead of actually censorship
of the material itself. It's a lot easier for the
government simply to punish people for disclosing the information than it is to prevent that
information from getting out in the first place. So that takes us to the
government's emergency motion. The second legal question in this case is whether President Trump
can stop Bolton's book from being published. The DOJ filed an emergency
motion for an injunction against publication of the Bolton book on the basis that it contains
classified information, this is otherwise known as a
temporary restraining order. Tellingly, the lawsuit
was filed against Bolton and not the publisher of
the book Simon & Schuster. But the government cites Federal Rule of Civil Procedure 65d, which states that an injunction
binds not only the parties, but also the officers,
agents, servants, employees and attorneys and all the
persons who are in contact into actual notice of the injunction. The DOJ contends that if the
court grants the injunction, that it should also bind the publishers and ultimately the booksellers, and probably everyone else
including journalists as well. So let's talk about the
law of prior restraint because this is coming up fairly often. In First Amendment law, prior
restraint is government action that prohibits speech and other expression before the speech actually happens. It's considered the most serious form of government censorship and therefore the government
bears a heavy burden when it seeks to stop
something from being published. And at first glance, the motion here appears to be based on the standards set forth
in the Pentagon Papers case which played a role in Watergate, and I've covered that case
many times on this channel. But in quick summary, the
Pentagon Papers was the name given to a top secret Department
of Defense study of the US political and
military involvement in Vietnam from 1945 to 1967. The government military
analyst, Daniel Ellsberg, who had worked on the study
came to oppose the war and decided that the information contained in the Pentagon Papers should be available to the American public. So he photocopied the
report and in March of 1971, gave a copy of the Pentagon
Papers to the New York Times, which then published a
series of scathing articles based on the contents. The Pentagon Papers showed that the Vietnam War was unwinnable and that Nixon, Johnson,
Kennedy, Eisenhower and Truman had all misled the public about
America's role in Vietnam. In that case, the DOJ sued
to stop further publication of the classified material. But the Washington Post
and the New York Times fought the DOJ and Supreme
Court ruled that the government had failed to prove harm
to national security, and that publication of
the papers was justified under the First Amendment's protection of freedom of the press. In that case, the government could not
overcome the heavy presumption against prior restraint of the press. And justices Black and Douglas argued that the vague word
security should not be used to abrogate the fundamental law embodied in the First Amendment. And the Supreme Court stated, "The guarding of military
and diplomatic secrets "at the expense of informed
representative government "provides no real
security for our republic. "The framers of the First
Amendment fully aware "of both the need to defend a new nation "and the abuses of the English
and colonial governments "sought to give this new
society strength and security "by providing that freedom
of speech, press, religion "and assembly should not be abridged." And because of those
principles and that language, there's only been one significant example of a successful government injunction, and that was in 1979, where
the US Department of Energy sued The Progressive magazine
to prevent an article written by an activist that revealed
how to make a hydrogen bomb. Although the government did not allege that the article posed
immediate or inevitable danger, the Department of Energy
did say that the article would increase the risk of
thermonuclear proliferation. And that was enough
for a US District Court to find that the security
of the US and the world would be at risk, stating that, a mistake in ruling
against the United States could pave the way for
thermonuclear Armageddon for us all. In that event, our right
to life is extinguished and the right to publish becomes moot. And therefore, publication
could indeed cause quote, grave, direct, immediate
and irreparable harm to the United States. Thereby meeting the test, the
Supreme Court had enunciated in the Pentagon Papers case. And although the government
got its injunction at the district court
level, the trial court, it abandoned the case when it appealed because it turns out the information about how to build an
H-bomb was already known and widely disseminated. And so if there was no secret, then there was no reason
for the censorship. So does anything in Bolton's book rise to the level of national security secret established by the Pentagon Papers case or the hydrogen bomb case? Well, the government says yes, quote, unlike ordinary confidential information the government holds, the
information at stake here is classified including some instances at the secret or top secret SCI levels, which means by definition that its disclosure
reasonably could be expected to cause serious damage or
exceptionally grave damage to the national security
of the United States. That comes from the Ellis Declaration sworn under penalty of perjury that was filed with the court. And in Mr. Ellis's
judgment, certain passages, if disclosed, quote, will damage the national
security of the United States. In support of equating
John Bolton's disclosures with an H-bomb, the DOJ
filed several declarations from Ellis and other officials, explaining that the
consequences of disclosure would be quote, grave. The Department of Justice filed several classified
in-camera declarations describing the supposedly
classified portions of Bolton's manuscript. But they did not file a
declaration from Ellen Knight, the first official who
reviewed John Bolton's book and allegedly said that it
didn't contain any classified or prohibited information. We don't have any testimony
from her under oath, and this is telling. That takes us to an interesting quirk known as Mandatory
Declassification Review. It's probably good in this case to be skeptical of the
government's declaration that all secrets pose grave
threats to national security, regardless of whether the President is Donald Trump or Joe
Biden or somebody else. And in these circumstances, courts should hold the
government to a very heavy burden before restraining freedom of the press, especially in a case like this, where the horse has already left the barn. And newspapers are already
publishing information from Bolton's book and he's
already taped a TV interview. - I don't think he's fit for office, I don't think he has the
competence to carry out the job. - And remember, if there's no secret, there's generally no
justification for censorship, putting aside the issue of
getting all of Bolton's profits. And this is just one of the
reasons why I personally, through Legal Eagle, has filed for a Mandatory
Declassification Review of the classified declarations
filed by the government on June 17th. Mandatory Declassification
Review, also known as MDR, is a means by which any
individual or entity can request any federal agency to review classified information
for declassification, subject to certain limitations. The request has to describe the document or material containing the information with sufficient specificity
to enable the agency to locate it with a
reasonable amount of effort. And thankfully for us, the
DOJ has made that really easy, since all the agency has to do is go through the same
material that it just filed in support of the temporary
restraining order. This will probably take some time and could involve a lawsuit and an appeal of whatever
decision the DOJ makes, but Legal Eagle is committed
to seeing this project through, including through litigation. So if President Trump's administration is playing games with classification, and there has been plenty of
indication of this in the past, then I think we ought to know about it. President Trump recently claimed that every conversation
with him is classified. - Even conversations with me,
they're highly classified, I told that to the
Attorney General before. I will consider every conversation with me as President, highly classified. - And this is absolutely not
the way any of this works. And as for what happens next, the court is going to
review the classifications and determine if it had
good reason to classify and therefore censor
the material at issue. So with that background of
the entire John Bolton saga, let's talk about the
government's emergency motion for a temporary restraining order, because we now know how this
at least preliminary portion of this case ends. Now, a TRO is a court order
to do or not do something for a short amount of time, generally only for a
few days or a few weeks until the court can have a full hearing on what's called the
preliminary injunction. A preliminary injunction
is a similar order that generally lasts throughout the entire length
of the particular case, and at the end of the case,
there is a permanent order that orders the parties to do
something or not do something. Now, a TRO, because it
is an emergency motion with a very, very short timeline, generally has the highest burden of all of those different injunctions. Because you don't get much
time to present evidence, you don't get much time
to show that things are such an emergency that they require this
temporary restraining order. So in order to get a TRO,
you need to do four things. You have to show, one, a substantial likelihood
of success on the merits, that means that you're
likely to win the case when it actually gets to
the merits of the case. Number two, you have to show that you would suffer irreparable injury if the injunction is not granted. Now, generally, money damages
are not irreparable injury, you have to show something that absolutely cannot
be properly compensated in the absence of this injunction. Number three, you have to
show that the injunction will not substantially injure
other interested parties. And number four, you have to
prove that the public interest will be furthered by the injunction. Now, that is a very, very high burden, especially on just a couple of days notice which is generally what
happens when you ask for a TRO. And here, the judge in this
particular case, Judge Lamberth, decided that the government
was likely to win on the NDA issue. The judge thought that it was likely, though certainly not certain, that John Bolton had published
classified information. And that was after an in-camera review, meaning that the court behind closed doors actually looked at the
evidence that was presented to the judge in this particular case, and the judge thinks that Bolton probably published
classified information. The judge also found that
the NDAs prohibit disclosure of this kind of classified information and thinks that Bolton
likely violated those NDAs by publishing his book. But that's just the
first factor of the TRO, that the government is likely to succeed on at least a portion of
the merits going forward. But a single factor
isn't enough to get a TRO and here, the judge went
on to the second factor and found that the government had not proved irreparable harm. In a case like this, the
information is already out there, the information has been published. The book is out there, it's in the hands of a
whole bunch of reviewers and the news media has access to the book, you can get access to it. So because the information
is already out there, the harm has already occurred and an injunction isn't
going to solve anything and the government isn't likely
to suffer irreparable harm as a result of not granting a
temporary restraining order. So the judge denied the TRO
and this case will go on, eventually there will be a hearing on the preliminary injunction and eventually there
will be a full hearing on the merits of the case, which is going to be a complicated trial about what John Bolton knew,
what information is classified, whether the information itself that Bolton included in his
book was classified or not. And interestingly, the judge specifically
left open the possibility of criminal charges against Bolton, the judge is not screwing
around in this particular case. So let's talk about those
potential criminal charges. Well, the restraining order
against Bolton is a civil case. He could in fact face criminal charges if the DOJ decides to prosecute him over the information he's
included in his book. There are many different
laws prohibiting mishandling or disclosure of classified material, for example, 18 USC 1924 which states, "Whoever being an officer,
employee, contractor "or consultant of the United States, "and by virtue of his office, "employment position or contract "becomes possessed of documents "or materials containing
classified information "of the United States, "knowingly removes such
documents or materials "without authority and with the intent "to retain such documents or materials "at an unauthorized location
shall be fined under this title "or imprisoned for not more
than five years or both." And this has happened before. Former CIA Director, David Petraeus, pleaded guilty to mishandling
classified information simply because he gave
it to his biographer, even though she didn't use
the information in his book. And Bolton made a major faux pas in how he dealt with the
pre-publication process, because the government's complaint alleges that Bolton violated
his obligations under the NDAs by sharing classified
information, quote, numerous times before his book was published and printed, just by discussing it with his lawyer, publisher and members of the news media. It's kind of crazy that these laws exist, but those laws do exist. And publication can mean giving potentially
classified information to anyone the government has
not pre-approved to receive it. And Bolton's lawyer admitted
to reviewing the information in an article that he wrote
for various newspapers. And the NDAs don't allow Bolton
to share classified material with anyone, not a publisher,
not a lawyer, not as friends and not the media. So in this case, what
should Bolton have done? Well, we're going to find out and I'm actually going
to make sure of that because this is the first time that Legal Eagle is
branching out into activism. Because these are unprecedented times and the information that Bolton
knows and tried to publish may strike at the heart
of the impeachment trial and what President Trump
was accused of doing with respect to potentially
using taxpayer money in order to extort a foreign power to help him in an election. And because this is so important, Legal Eagle filed FOIA
request with the government and the government has
so far stonewalled us, which has caused us to file
suit against the government. Now, if you wanna know more
about the FOIA requests and the suit that I filed
against the government concerning John Bolton
and this whole affair, I will drop a link in the
description to that video, I'll go into more depth
about that particular video. But like any good lawyer, I'm
getting help from the best. And this would not be possible if it weren't for the
National Security Counselors and Executive Director of the
National Security Counselors, Kell McClanahan, who are some of the best
national security lawyers in the country. They're going to be
handling this litigation on Legal Eagle's behalf. I am not a national security lawyer so I teamed up with the people who are. And the National Security
Counselors is a 501c3, so if you'd like to see
this litigation through, it would mean the world to us if you would consider
donating to the firm. Lawyers and litigation are expensive and we are committed to taking
this litigation to the mat. There's a link in the description to a place where you can donate to the National Security Counselors. And hopefully this won't be a
one-off piece of litigation. If it becomes necessary again, it would be great to have
the infrastructure in place to file a similar lawsuit in the future. And any donations that are made above the cost of this litigation will go towards the other charitable work of the National Security Counselors, which includes not just
representing YouTubers and YouTube channels, but also goes towards
representing whistleblowers, representing other journalists
who are making FOIA requests and enforcing those FOIA requests, suing to strike down
anti-transparency policies and practices and advocating
for pro-transparency and accountability in the government. So if you would consider donating, I would greatly appreciate it, the donation is tax deductible. And I think this is important because sunlight is the best disinfectant and there might be really
important information that really should see the light of day. So check out that link, check back on the channel for updates about my lawsuit against the government, including the White House, the CIA, the Department of Justice,
the Department of Defense and a whole bunch of others. And it's my hope that together, we can actually make a
difference on this thing and expose information that
the government doesn't want us to see in this particular case.
I like LegalEagle and I'm interested in seeing where this goes, but I'd hardly call him leftist. Helping hbomberguy with some issues does not a leftist make.