Donald Trump’s impeachment trial is drawing to an ignominious end without hearing from any first-hand witnesses. Preeminent among those not heard is John Bolton, Trump’s former National Security Advisor, who had indicated a willingness to testify under oath if subpoenaed. Bolton has also written a memoir of his tenure in office, provocatively titled The Room Where It Happened, and scheduled to go on sale on March 17.
If New York Times reporting is to be trusted—and I trust it—the book makes a number of explosive claims. First, Bolton heard directly from Trump about his plan to withhold military assistance in order to extort political favors. Second, and even more sensationally, the illicit pressure campaign began months earlier than had been known and a bigger circle of players was in on it. In early May 2019, Trump had a conversation in the Oval Office in which the plot was discussed in a meeting attended by Bolton, the president’s personal lawyer, Rudi Giuliani, the acting White House Chief of Staff Mick Mulvaney, and White House Counsel Pat Cipollone.
In a statement, Trump has flatly denied Bolton’s claims. Giuliani has taken to Twitter to say, “The meeting the Times describes is a lie. If Bolton is the source and he believed this was so bad, why didn’t he quit? How much integrity and honor will a man sacrifice for greed and revenge?” Mulvaney, more circumspectly, says he has no recollection of the meeting. Cipollone, who led the President’s defense team in the Senate while also evidently a fact witness—a glaring conflict of interest—has thus far said nothing. Whatever their individual roles, with the trial coming to an end, the question now is whether the public will at least get a chance to learn the facts as Bolton lays them out in his book.
The matter is in some doubt. In late December, Bolton submitted the manuscript to the White House for a mandatory pre-publication security scrubbing, asking for it to be completed within 30 days. But the White House appears to be trying to kill the book, or at least neuter it. It sent a letter to Bolton’s attorney declaring that the memoir
appears to contain significant amounts of classified information. It also appears that some of this information is at the TOP SECRET level, which is defined by Executive Order 13526 as “information that reasonably could be expected to cause exceptionally grave harm to the national security” of the United States if disclosed without authorization. Under federal law and the nondisclosure agreement your client signed as a condition for gaining access to classified information, the manuscript may not be published or otherwise disclosed without the deletion of the classified material.
The White House is demanding “significant” excisions.
It beggars belief that Bolton included any classified information in his manuscript, let alone significant amounts, including Top Secret material. When it comes to national security secrecy, Bolton is a consummate professional with long years of experience as a ranking national security official. As National Security Advisor, he held the power to both classify and declassify information. He is the author of a previous memoir of a stint in government, making him intimately familiar with the pre-publication review process. And, whatever one thinks of his foreign policy views, he has a well-deserved reputation for integrity. In a reply to the White House, Bolton’s attorney has already stated: “We do not believe that any of the information could reasonably be considered classified.”
It is almost a certainty that White House claims to the contrary are being made in bad faith. A corollary: It is almost a certainty that the portions the White House wants excised are those revealing the misconduct of Donald Trump. The pre-publication review process is being scandalously perverted for political ends.
In the face of such a cover-up, what can, what should, Bolton do?
Two landmark cases involving the CIA lay out some of the issues.
Victor Marchetti was a CIA operative who quit the agency in 1969 and went on to write a book (coauthored with John Marks) titled The CIA and the Cult of Intelligence. It laid bare many of the secrets with which he had become acquainted over the course of his 15-year CIA career. The manuscript detailed operations and activities of the agency in locations ranging from Indochina to Angola, with portions touching on the very thing that the CIA held most dear: intelligence sources and methods. Like Bolton, Marchetti had signed a document pledging not to “divulge, publish, or reveal” classified information unless authorized to do so. Unlike Bolton, Marchetti did not submit the manuscript to the agency for a mandatory review.
Learning of Marchetti’s publishing plans, the CIA first contemplated recommending his prosecution under the espionage statutes. But to avoid the likelihood that a trial would cause even more secrets to spill out, it decided on another course. It obtained a temporary restraining order and sent Federal marshals to Marchetti’s door to notify him that he was forbidden to show his manuscript to anyone, including his publisher.
Marchetti challenged the injunction in court and lost. While agreeing that Marchetti had a First Amendment right to express himself, the court found that the CIA could nonetheless impose secrecy constraints on its employees; it was only precluded from barring them from discussing unclassified or previously disclosed materials. Active secrets were something else. Citizens like Marchetti, wrote the court, “have the right to criticize the conduct of our foreign affairs.” But at the same time, the government has a “right to secrecy.” Indeed, it has a “duty to strive for internal secrecy about the conduct of governmental affairs in areas in which disclosure may reasonably be thought to be inconsistent with the national interest.”
What this meant in practice was that the government had to act expeditiously to approve or disapprove any material that Marchetti presented for clearance, and he would be entitled to have a judge review the agency’s decisions. In the end, the CIA found 339 passages they wanted to excise, amounting to between 15 and 20 percent of the book. After further court battles over this censorship, the published version of the book emerged with only 168 elisions, which Knopf, the publisher, indicated by displaying blank lines where the CIA had been successful in suppressing information and bold text to indicate where the agency had retreated. The entire process lasted approximately a year—so much for expeditiousness.
Not long thereafter an even more celebrated case made its way to the Supreme Court. Frank W. Snepp III was a rising star at the CIA. During his eight year stint at the agency, most of them spent in Vietnam, he worked as a debriefer of agents, an interrogator of captured Viet Cong guerrillas, and a top analyst of North Vietnamese strategy. Passionately engaged in the effort to salvage the American and South Vietnamese position, Snepp was in Saigon through the war’s final days. He was among the last CIA officers to depart the American Embassy roof via helicopter when Saigon fell on April 29, 1975, and was horrified by the failure, as the United States rushed to evacuate its own personnel, to rescue its many Vietnamese friends, who were certain to pay a stiff price for their cooperation with our war effort once the South fell into Communist hands. Among those forsaken and left behind was Snepp’s own Vietnamese lover, who then took her own life along with that of their infant son.
The disastrous final chapter of the war was the subject of Snepp’s scathing portrait of America’s betrayal in Decent Interval, published by Random House in 1977 to wide acclaim. Like Marchetti, he had signed a promise not to publish any information drawn from his CIA employment “without specific prior approval by the Agency.” Unlike Marchetti, he broke his word. Even while telling his former supervisors in the agency that he would be submitting the manuscript to them for review, he was planning, secretly, to do otherwise.
Snepp’s clandestine approach did not succeed in keeping the CIA in the dark. As it did with Marchetti, and as the Justice Department had done with Daniel Ellsberg and the Pentagon Papers, the agency pressed to impose a prior restraint on Snepp, complete with an order to seize all copies of Decent Interval. But the Justice Department, now staffed by more liberal Carter Administration appointees, declined to take a step certain to excite the wrath of First Amendment advocates. Instead, they sought to impose sanctions on Snepp for violating his agreement.
This would have been an ordinary breach of contract suit: Snepp had signed a secrecy agreement and was breaking it. But what made it remarkable was the government’s contention, ultimately taken up by the Supreme Court, that even if no classified information was revealed, publication of the book still had “caused the United States irreparable harm and loss.” The CIA’s position was that a former intelligence agent’s publication of unreviewed material was detrimental simply because it was known to be unreviewed. The problem was not the information itself, which the government stipulated was unclassified, but the demonstration to friendly foreign countries and individuals that a process vital to their own security had disintegrated.
This argument held sway, and the court found that Snepp had “willfully, deliberately, and surreptitiously breached his position of trust with the CIA.” The potential damage from such conduct was clear:
When a former agent relies on his own judgment about what information is detrimental, he may reveal information that the CIA—with its broader understanding of what may expose classified information and confidential sources—could have identified as harmful. In addition to receiving intelligence from domestically based or controlled sources, the CIA obtains information from the intelligence services of friendly nations and from agents operating in foreign countries. The continued availability of these foreign sources depends upon the CIA’s ability to guarantee the security of information that might compromise them and even endanger the personal safety of foreign agents.
In the face of Snepp’s intentional transgression, the court imposed the remedy sought by the government: Snepp was forced to “disgorge the benefits of his faithlessness.” He had to surrender to the government his $120,000 advance and all subsequent royalties from his book. The Supreme Court upheld this judgment.
Bolton is not exactly situated like either Marchetti or Snepp. To begin with, Bolton was not a midlevel operative at the CIA but a ranking official in the White House itself. As such he possessed and possesses the “broader understanding” of the equities involved in secrecy decisions that low-ranking officials are said to lack. For another thing, unlike Snepp, Bolton has never planned to launch his book in secret, bypassing the pre-publication process. He has made a good faith effort to abide by the rules. It is the government that appears to be acting in bad faith.
For yet another thing, unlike Marchetti, Bolton has already provided his manuscript to his publisher. The unreviewed volume has thus been seen by individuals who lack clearances, such as his editors at Simon & Schuster and his literary agent, and the manuscript is already housed on numerous computers that lack the security features which classified information demands. Bolton is already in violation of his secrecy agreement, although that particular type of pre-publication violation has become commonplace.
Whatever the differences, the choices before Bolton are unattractive in the extreme. He could battle the government in court, a process that could tie up the book for months if not years, possibly severely crimping sales and depriving the public in a timely fashion—before the November elections—of the valuable information his memoir contains. Or Bolton could roll the dice and violate the secrecy agreement, proceed with publication, let the government sue him as it did Snepp, and hope to prevail in court. If he opts to challenge a government that is abusing its secrecy powers for political aims, the prescient words of Justice Stevens’ dissent in Snepp could be taken as encouragement:
[T]he Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen’s right to criticize his government. Inherent in this prior restraint is the risk that the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks.
Be that as it may, if Bolton were to defy the White House, he would face the additional theoretical risk of prosecution under the espionage statutes, which criminally punish anyone who without authorization “willfully communicates, delivers, [or] transmits” national defense information. Given the almost certain falsity of the White House contention that the manuscript is replete with sensitive secrets, such a criminal prosecution would be highly unlikely, and a successful conviction even less so. But enduring prosecution would be an ordeal and, under the Trump-Barr Justice Department, extraordinary happenings cannot be ruled out.
Whatever Bolton decides to do, the public interest in the outcome is clear. It lies in protecting legitimate secrets, ensuring that the classification system is not misused to shield embarrassment or criminality, and revealing presidential malfeasance in a timely manner. The Trump White House appears determined, yet again, to trample on the public interest. Of course, Bolton has had the opportunity to tell his story to the media at any time. For reasons that have invited a lot of dark speculation, he has declined to do so. Whatever one’s guess about Bolton’s motives (I am not alone in being deeply troubled by his silence), the future of his memoir is a matter that concerns us all.