John Bolton - the Authors Guild

On September 15, the Trump Administration continued its campaign against John Bolton and his book The Room Where It Happened by opening a criminal inquiry into whether Bolton had unlawfully disclosed classified information in his bestselling memoir. The Department of Justice convened a grand jury, which issued a subpoena for communications  records from Simon & Schuster, Bolton’s publishers.

This investigation prompted Ellen Knight,  the former Senior Director for Records Access and Information Security Management at the National Security Council,  who conducted the initial prepublication review, to submit an 18 page letter on September 23 to the DOJ and Bolton’s counsel explaining the prepublication process. She expressed concern:

“about the politicization -- or even the perceived politicization -- of the prepublication review process. Once authors start perceiving that manuscripts are being reviewed for political considerations, they will lose confidence in the integrity of the process and find ways to publish or release their works without submitting them for review. This could result in unchecked disclosures of sensitive information and the potential for serious damage to our national security.”

Ms. Knight explained that there are differences between a “classification review,” and the “prepublication review process.” A classification review is aimed at identifying and protecting “sensitive information in documents written by government employees and contractors working for the government.”  A prepublication review, on the other hand, involves reviewing the writings of a private citizen:

“Its purpose is two-fold – to ensure the protection of government information whose disclosure would damage national security while at the same time supporting that citizen’s right to publish all First Amendment-protected information. It is therefore designed not to limit the transmission of information, but rather to facilitate the private citizen’s ability to transmit his thoughts in a way that does not disclose government secrets.” (emphasis added)

Ms. Knight’s letter states that the Bolton prepublication review process “entailed an unprecedented amount of interaction between the political appointees in the NSC Legal staff and the career prepublication review staff.”  Despite her years of experience in prepublication review and her opinion that the final version of the Bolton manuscript did not contain classified information, the NSC assigned then-Deputy Legal Advisor Michael Ellis to perform his own review (which he did before receiving the necessary training).  It was based on this review that Bolton was told on June 8 that his manuscript “still contains classified material.” The Knight letter states how Ellis’ re-review was “fundamentally flawed,” in that it was a classification review, rather than a prepublication review, and therefore the wrong type of review for Bolton’s manuscript.

According to the letter, on June 13, Ms. Knight met with several attorneys, including the Deputy Counsel for the President, and was questioned about the passages that she had cleared, but which were marked by Ellis’ subsequent review as classified:

“It was clear to Ms. Knight that they were trying to get her to admit that she and her team had missed something or made a mistake, which mistake could then be used to support their argument to block publication. To their consternation, Ms. Knight was able to explain the clear and objective reasoning behind her team’s decision-making as to each of the challenged passages.”

When Ms. Knight speculated that this litigation was brought “because the most powerful man in the world said that it needed to happen”, several attorneys agreed with her assessment.

The civil litigation is still ongoing, and the Authors Guild will continue to monitor both suits, as well as any other developments in this increasingly tortuous situation.