The Justice Department and lawyers for former national security adviser John Bolton faced off for the first time in a court hearing Friday over the Trump administration's push to stop the release of Bolton's memoir next week.
D.C. District Judge Royce Lamberth is considering an extraordinary request from the DOJ that would carry sweeping constitutional implications -- the department has sought an injunction that would bar Bolton's publisher, along with thousands of distributors and bookstores around the country already in possession of Bolton's memoir, "The Room Where It Happened," from selling it to customers next Tuesday.
The Justice Department, citing sworn statements from a cadre of the nation's top intelligence officials, has argued the book still contains multiple paragraphs-worth of classified information and could cause "grave" damage to U.S. national security if it is released.
But according to a filing from Bolton's lawyers late Thursday, "over 200,000 copies of the book have already been printed, bound and distributed to booksellers throughout the country, and thousands more have shipped internationally," in addition to dozens of media outlets who received the manuscript earlier this month for review. Additionally, news outlets including the Washington Post and New York Times have already reported on certain details from the memoir, and Bolton penned an op-ed in the Wall Street Journal Wednesday that included material in his book on President Donald Trump's negotiations with China.
Lamberth addressed that point at the beginning of Friday's hearing.
"The horse, as we used to say in Texas, seems to be out of the barn," Lamberth said before turning it over to the government.
He added that he finds it "difficult" to see how he can do anything about the books that have already been distributed.
Assistant Attorney General David Morrell told the court that they want Bolton to further limit the dissemination of any books, referencing things such as audiobooks.
"This is a problem of his own making. The onus is upon (Bolton) to figure out how to solve it," Morrell said.
Bolton's attorney, Chuck Cooper, opened his remarks echoing the judge's comments about the horse being out of the barn.
"The speech has been spoken. It can't now be un-spoke," he said.
Bolton has denied that his book contains classified information, noting his months-long deliberations with a senior official on the National Security Council, Ellen Knight, who worked with him on edits to remove classified information and in late April relayed to Bolton, "that's the last edit I really have to provide for you." On May 7, though, Knight informed Bolton that "(t)he process remains ongoing" and that her staff would "reach out as soon as there is an update to provide," according to court filings.
The review was then separately picked up by a separate NSC official, Michael Ellis, who on June 9 came forward with the determination that it included information "classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels." According to the Justice Department, that determination came just two days after Bolton and his publisher announced they'd move forward with releasing the memoir citing what they described as the White House's abuse of the pre-publication review process.
A separate filing from the Justice Department just before the hearing revealed that Ellis -- who intervened in the process at the request of Bolton's successor Robert O'Brien, did not go through training for the classification process until the day after he finished reading Bolton's book.
The filing states that Ellis' training merely confirmed his earlier judgment in overruling Knight, but the disclosure indicates that Knight will likely be a key figure moving forward in the case as the judge considers whether the material identified by the government should be deemed classified.
Lamberth asked the government at Friday's hearing how common it is for senior officials to "intervene in the process," given Knight's preliminary determination that the manuscript no longer contained any classified information.
The Justice Department said it wasn't aware of a particular case where officials got involved in this manner, but called this instance "extraordinary" because Bolton was a senior official with access to national security intelligence.
Later, the judge asked Cooper about whether Bolton had honored the terms of his non-disclosure agreement with the White House.
"Ambassador Bolton fulfilled his contractual obligation, not just in the spirit, but to the letter," Cooper said.
But Lamberth shot back saying, "That's not true."
"He didn't get written authorization, I don't understand why he didn't sue," Lamberth said. "He can't just walk away and he didn't even tell the government he was walking away. He just told the publisher to publish."
Cooper said, "Your honor, he didn't walk away."
But then Lamberth continued, "And now he says too bad, government, nothing you can do."
Cooper argued that there is no dispute that Knight is an authorized official who confirmed the information in the book was not classified and that while Bolton didn't tell the government what he was doing, the government didn't tell him "despite his request for more information" that he needed to continue making edits to the manuscript.
In a nearly 50-page memorandum from Bolton's legal team, submitted Thursday night, they allege the government's action to prevent the publication of his memoir is rooted in the "transparent purpose of preventing Ambassador Bolton from revealing embarrassing facts about the President's conduct in office."
"It is difficult to conceive of speech that is closer to the core of the First Amendment than speech concerning presidential actions in office, including actions at the heart of the President's impeachment," the filing says. "And it is difficult to conceive of a greater attack on the First Amendment than the suppression of that speech in the service of a reelection campaign. But that, we respectfully submit, is precisely what is happening in this case."
At Friday's hearing, Lamberth asked, "Is the president, in fact, instructing intelligence officials to designate portions of the book as classified?"
Morrell said he hadn't spoken to the president about it.
Later in the hearing, though, Lamberth took some exception to allegations that the actions against Bolton were solely politically motivated. Citing two of the senior government officials who submitted sworn statements on Wednesday to the court stating that Bolton's book still contains classified information -- National Security Agency Director Gen. Paul Nakasone, and the DNI's National Counterintelligence and Security Center Director Bill Evanina -- Lamberth argued they are seemingly apolitical officials.
"I'm not going to give blind deference, but I'm also gonna give some deference to officials like that," Lamberth said.
Lamberth concluded the hearing saying he would plan to review the classified information submitted by the government, but did not indicate when he might rule on their request for an injunction.
Separate from the government's motion for a temporary injunction, Friday's proceedings are likely only the beginning of a longer-running court battle.
The Justice Department has indicated it will seek to seize any profits Bolton earns from his book, alleging he breached his non-disclosure agreement signed upon entering the White House. Bolton could also potentially face charges under the Espionage Act based on the government's allegations that passages in his book include information that could be designated as high as "Top Secret."