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John Bolton should 'claw back' tell-all book on Trump, government lawyer argues to judge

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Key Points
  • A lawyer for the U.S. government said that former national security advisor John Bolton's decision to publish a damning book about his time serving President Donald Trump is "a flagrant breach" of Bolton's agreement to not write about classified matters.
  • Deputy Assistant Attorney General David Morrell also argued at a court hearing that it is Bolton's responsibility to now "claw back" all copies of his book, "The Room Where it Happened," which is due to be released next Tuesday.
  • "He's created this mess, he's created this problem," Morrell contended in support of his request that Senior Judge Royce Lamberth issue an injunction barring the book from being published for now.
U.S. National Security Advisor, John Bolton, meets with journalists during a visit to London, August 12, 2019.
Peter Nicholls | Reuters

WASHINGTON – A lawyer for the U.S. government said Friday that former national security advisor John Bolton's decision to publish a damning book about his time serving President Donald Trump is "a flagrant breach of" Bolton's agreement to not write about classified matters.

Deputy Assistant Attorney General David Morrell also argued, during a court hearing before a federal judge, that it is Bolton's responsibility to now "claw back" all copies of his book, "The Room Where it Happened," which is due to be released next Tuesday.

"He's created this mess, he's created this problem," Morrell contended in support of his request that Senior Judge Royce Lamberth issue an injunction in U.S. District Court in Washington barring the book from being published, for now.

The Justice Department alleges in a lawsuit that the memoir contains classified information, and on Thursday, asked Lamberth to halt distribution and sale of the book, details of which already have been widely reported. 

Morrell said that Bolton had agreed as part of his job in the federal government that he would not publish a book containing classified information.

"In exchange for money, he has broken that promise," Morrell said during the hearing, which was conducted via telephone due to the coronavirus pandemic.

"This is a problem of his own making, the onus on him to solve it."

Morrell called Bolton's move to publish the book before receiving approval from the government as part of a review process for classified material "a flagrant breach of the defendant's commitment."

"It is not his role or entitlement to decide when the process is done," the lawyer said.

But before Morrell argued his case, the judge raised the question of whether it was too late now to stop the book from being sold, given the fact that copies of it have already been shipped nationwide.

"The horse, as we used to say in Texas, seems to be out of the barn," Lamberth said. "It certainly looks difficult to me what I can do about those books all over the country."

Morrell told the judge that "deterrence matters, and that there's a massive government interest" in making sure agreements to not disclose classified information "are not breached willy-nilly." He said that Bolton could direct the book's publisher, Simon & Schuster, to contact distributors and ask for copies of the book to be shipped back.

Bolton's lawyer, Charles Cooper, told the judge, "Ambassador Bolton fulfilled his contractual obligation not just in spirit, but to the letter."

But Lamberth shot back, "That's not true. He didn't get written authorization."

The judge added, "I don't understand why he didn't" file suit against the government if he thought the review process was taking too long, or was making incorrect determinations about what material in a draft of the book was classified.

Cooper later said that "until these motion papers were presented by the government, there was never even a hint — a hint!  — that there might be sensitive compartmentalized information in the manuscript."

After two hours of arguments, Lamberth declared a recess in order to review the government's classified material designations behind closed doors.

Legal back-and-forth

Bolton filed a motion Thursday asking the judge to dismiss the last-minute Trump administration lawsuit seeking to stall release of "The Room Where it Happened."

In Bolton's motion to dismiss the suit, Cooper denied there is classified information in the book. And Cooper detailed a monthslong prepublication review process that Bolton underwent with the National Security Council.

This review ended in late April, when Bolton received an email from the official reviewer saying his manuscript did not contain any classified information, according to Cooper.

The lawyer argued that the fact that the government never sent Bolton an official letter clearing the book for publication is meaningless.

Cooper also called the White House's subsequent claim that the NSC reviewer missed some classified information "pretext designed to cover up what is in fact a determined political effort to suppress Ambassador Bolton's speech." Bolton was U.S. ambassador to the U.N. under President George W. Bush.

The lawyer also argued that the question of blocking the book's release is already moot, because thousands of copies have already been shipped to stores across the United States, and around the world. 

A key element of Bolton's claim is that the Justice Department is trying to delay release of his book to spare Trump political fallout in an election year, an argument supported by the president's own previous statements about the book.

The president's interest in quashing Bolton's memoir goes as far back as February, when he told reporters at a private lunch: "We're going to try and block the publication of the book. After I leave office, he can do this. But not in the White House." 

It's easy to see why Trump wanted Bolton muzzled as long as Trump was in office.

"The Room Where it Happened" paints Trump as a "stunningly uninformed," craven and mendacious chief executive, and one who repeatedly signaled his willingness to sell out the nation's security interests if it meant advancing his own interests.

Trump's war on Bolton

The Justice Department's lawsuit is only one piece of a wide-ranging effort by the Trump White House to disparage and discredit Bolton. 

Ever since reports emerged about the book's contents, Trump has alternated between calling Bolton a liar on one hand, and insisting that Bolton illegally revealed classified information on the other. 

"He broke the law, very simple, I mean, as much as it's going to be broken. This is highly classified," Trump said of Bolton's book during a Wednesday interview with Fox News' Sean Hannity.

"It's highly classified information. And he did not have approval. That's come out now very loud and very strong."

Twelve hours later, Trump said the book was nothing but lies.

"Bolton's book, which is getting terrible reviews, is a compilation of lies and made up stories, all intended to make me look bad," Trump tweeted Thursday morning.

"Many of the ridiculous statements he attributes to me were never made, pure fiction. Just trying to get even for firing him like the sick puppy he is!"

Legal scholars say Trump's dual claim that the material in Bolton's book is classified, but is also false, is a very tricky one to make.

"One interesting wrinkle for the government is that in order to claim elements of Bolton's book are classified, the government must admit the information in question is true," Susan Hennessey, a senior fellow in governance studies at the Brookings Institution, tweeted Wednesday. "There's no such thing as a classified lie." 

So far, neither Trump nor his top White House aides have detailed exactly what they believe to be false in Bolton's book. Instead, they have attacked Bolton's motives for writing it, his patriotism and his sincerity. 

-- CNBC's Dan Mangan reported from New York.