Clash of Titans Over Classified Government NDAs: Has the Trump Administration Actually Created and Lost Its Very Own Vietnam War Style Crisis?

June 18, 2020, Shining Law Firm: Yesterday, the US Government finally filed a request for a temporary restraining order against John Bolton and his new tell-all book “The Room Where It Happens.” (See a link to the brief below.) The government’s ex parte application asks D.C. Judge Royce C. Lamberth to stop the publication of Bolton’s entire new book, “The Room Where It Happened.” In his memoir of his Trumpian White House experiences, Bolton apparently reveals more than a few things that the Trump White House probably wishes had never happened.

The key pieces of evidence cited by the Government’a motion are two declarations from NSC Officer Michael Ellis, a very short unclassified declaration and one that is classified and not filed with the court. Ellis apparently took over the review of Bolton’s book after it was reviewed by Ellen Knight, Senior Director for Records Access and Information Security Management Directorate at the NSC. Ms. Knight told Bolton orally that the manuscript was okay on April 27, 2020. However, she did not give final clearance in writing, and the review process was handed off to her senior, Mr. Ellis. The Government admits upfront that Knight believed that the book was free of disclosures, something that is a frankly shocking admission to see this early in a case in black and white.

Obviously, the U.S. Government will bear the burden of establishing the need for the restraining order, showing breach of contract and irreparable harm. Litigators think long and hard before asking for restraining orders at the outset of a contract case, and do so only when they believe that they are going to win easily based on a good deal of evidence. Losing such a motion is always obviously catastrophic to the case. Many civil clients in trade secrets cases ask their lawyers to seek restraining orders. Most experienced civil litigators talk them out of it unless truly devastating secrets are actually at risk and overwhelming evidence can be provided to the court upfront.

As reported in the press, a good deal of the brief is devoted to descriptions of the non-disclosure agreements that were signed by Bolton (See link to the agreements below). Yet these agreements are form agreements that are only a few pages long, and only reference classified information, not private confidential information.

The main weakness of the Government’s brief may be that the evidence provided only summarizes six paragraphs – the Government appears to have provided no details nor any of the allegedly damaging language. Those summaries are only provided in classified declarations, not found in the public court records. (See link to the unclassified Ellis declaration below). There are several other declarations from high level National Security Council officers, all stating that “certain passages” contain confidential information. None of them actually mention anything about the specific passages. Nor does the brief argue that the whole book is tainted. Can the US Government get a court order banning the entire book based on just a few excerpts? In particular, can this order rest when the case is based only on breach of contract and not criminal relief? The government’s lawyers may have confused classified with confidential. The weakness of most non-disclosure agreement is that the employer has failed to succinctly define the information protected, often going to far or not far enough.

Tellingly, the Ex Parte application mentions a famous case known as “the Pentagon Papers” in a single footnote on page 18 of the 37-page brief. New York Times Co. v. United States, 403 U.S. 713 (1971). In the Pentagon Papers case, the U.S. Government famously sought to prevent the New York Times from publishing leaked government documents concerning the Vietnam War. The Pentagon Papers are a massive 47-volume, 7,000 page set of sealed Department of Defense documents. Famously following his conscience, Former Pentagon Aide Daniel Ellsberg leaked those documents to the press believing that the public needed to know why decisions were being made in governing the war. Ellsberg was charged with numerous criminal offenses, but those chargers were dropped when it was revealed that government operatives had broken into his psychiatrists’ office seeking information to discredit him.

The Pentagon Papers opinion of the Supreme Court was issued in only 15 days’ time. The opinion was highly fractured, with a 6-3 holding. Numerous split opinions were issued and its meaning has been debated in thousands of courtrooms since then. Justices Black and Douglas wrote to allow publication:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

New York Times Co. v. United States, 403 U.S. 713, 717 (1971). In its application against Bolton, the Trump Administration’s brief cites this opinion only as something being cited in another case. It fails to discuss any part of the Pentagon Papers case at all, despite the nearly identical factual circumstances.

In 1964, the Supreme Court issued another mammoth opinion which set forth another set of standards governing the freedom of the press from libel. In that case, an elected official from Montgomery, Alabama brought a libel action based on the publication of an advertisement in the New York Times. Those who brought the Petition included no less than the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South” among others. Chief Justice Brennan ruled against the official. Central to Brennan’s reasoning was the following citation from an early case from famed Justice Louis Brandeis:

Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

No one will disagree that the spring of 2020 has been a turning point in American culture, society and governance. No one will disagree that Bolton – in perhaps exactly opposite political leanings from Ellsberg — has created his own lightning rod persona. No one will argue that Bolton, unlike Ellsberg, has sought to profit from the timing of his disclosures.

Each week and nearly ever day has provided a view of a world unimagined the day before. As young law students in the late 1980s and 1990s, these opinions seemed dusty and boring, obvious although interesting curiosities. They are front and center again in our discourse, for better or worse. Take a moment to read them again no matter the outcome in U.S. v. Bolton, and remember their concepts, beliefs and how democracy can work for all.