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Court Refuses to Enjoin Publication of Bolton Book

By Paul Safier

On June 20, 2020, Judge Royce C. Lamberth of the United States District Court for the District of Columbia rejected a last-minute effort by the Trump Administration to enjoin publication of a memoir by President Trump's former National Security Advisor, John Bolton. U.S. v. Bolton.

Though the Government sued only Bolton, it nonetheless also sought relief against the publisher, Simon & Schuster, Inc., asserting that an injunction barring Bolton from disseminating the information contained in the book should also prevent Simon & Schuster from proceeding with publication. Judge Lamberth rejected that effort, holding: "For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The Bolton Book

In September 2019, following Bolton's departure from the Trump Administration, Simon & Schuster entered into a publication agreement with him to publish a memoir about his time working for President Trump. The book, which was eventually titled, The Room Where It Happened: A White House Memoir, is highly critical of the President and his national security decision-making.

In late December 2019, Bolton elected to submit the manuscript to the National Security Council ("NSC") for prepublication review pursuant to non-disclosure agreements he had entered into with the NSC. Nonetheless, as Bolton's attorney, Charles J. Cooper, explained in correspondence to the NSC at the time, Bolton had "carefully sought to avoid any discussion in the manuscript of sensitive compartmented information ('SCI') or other classified information, and ... accordingly d[id] not believe that prepublication review [wa]s required."

On April 27, 2020, four months after the prepublication review process began, the NSC's Senior Director for Records, Access and Information Security Management, with whom Bolton had been working up to that point, informed him that she had completed her review and that the many changes he had agreed to make to the manuscript at her behest were satisfactory. Bolton's representatives then communicated that determination to Simon & Schuster, which, shortly thereafter, took the necessary steps to formally accept the book for publication. Simon & Schuster set a publication date of June 23, 2020, and began the process of readying the book for publication, a process that involved, among other things, printing copies of the book, processing orders, and shipping ordered copies to retailers and wholesalers to be available to customers by the publication date.

On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, informed Bolton that, despite the NSC's prior representations, the prepublication review process was not yet complete and the Government now believed that the book contained classified information. On June 10, 2020, Bolton's attorney responded by letter, asserting that "Bolton has fully discharged all duties that the Federal Government may lawfully require of him under the nondisclosure agreements," and accusing the Government of using "national security concerns as a pretext to censor, or least indefinitely delay" the book's publication. The letter also stated that, based on the NSC's prior "assurances that [the] manuscript contained no classified information," Bolton and "his publisher, Simon & Schuster, moved forward with publication of the book," and the book "has now been printed, bound, and shipped to distributors around the country."

The Government's Lawsuit

The Government filed its lawsuit on June 16, exactly one week before the book's scheduled publication. The next day, the Government moved for a TRO/preliminary injunction, seeking an order restraining publication of the book. The Government did not name Simon & Schuster as a defendant. Instead, the Government sued only Bolton on the ground that he had breached his contractual duties to the Government to complete the prepublication review process. The Government nonetheless asked that the injunction it sought against Bolton be expressly extended to Simon & Schuster under Rule 65(d)(2) of the Federal Rules of Civil Procedure, which provides that those bound by an injunction include not only the party against which the injunction is issued, but also that party's "officers, agents, servants, employees, and attorneys," as well as "other persons who are in active concert or participation with" the party subject to the injunction.

The Government's decision not to sue Simon & Schuster was a transparent effort to execute an end-run around the near-total prohibition on prior restraints, including in the national security context. The Government's gambit was that it could obtain an injunction against Bolton, under the line of cases holding that requiring a former Government employee to submit to the prepublication process prior to publication is not a prior restraint, and then extend that injunction to Simon & Schuster under Rule 65(d)(2) on the theory that Simon & Schuster was working with Bolton to publish the book.

Because Simon & Schuster was not a defendant, it did not file an opposition to the Government's TRO application. Instead, it provided a declaration from its CEO, Jonathan Karp, which was filed by Bolton as part of his opposition papers. That declaration made three main points: (1) Bolton's book addresses a matter of great public concern; (2) once Simon & Schuster formally accepted the book for publication, Bolton lost any authority/ability to prevent or delay the book's publication; and (3) by the time the Government filed its motion papers, copies of the book had been widely distributed, with over 200,000 copies already shipped to booksellers both domestically and internally, and review copies provided to most of the major print, broadcast, and cable news outlets in the country, many of which had already extensively reported about, or excerpted from, the book.

In addition, three amicus briefs were filed in opposition to the Government's motion: one by the Reporter's Committee for Freedom of the Press, along with The Association of American Publishers, Inc., Dow Jones & Company, Inc., The New York Times Company, and the Washington Post, another by PEN America, and a third by the American Civil Liberties Union, American Civil Liberties Union of the District of Columbia, and the Knight First Amendment Institute at Columbia University. Each amici argued that the injunction sought by the Government would be an unconstitutional prior restraint. The brief submitted by the Reporter's Committee argued that the First Amendment's protections against prior restraints applied especially to any injunction that purported to bind Simon & Schuster.

Judge Lamberth's Ruling

On the afternoon of June 19, Judge Lamberth held a two-hour hearing on the Government's TRO application. Following the public portion of the hearing, Judge Lamberth held an ex parte session with the Government to address its claims that there is classified information in the book.

The next morning (which was a Saturday), Judge Lamberth issued his decision denying the Government's request to enjoin publication. In his ruling, Judge Lamberth chastised Bolton for what he characterized as Bolton's unilateral ending of the prepublication process before receiving a written sign-off, and observed that "Bolton likely published classified information." Nonetheless, Judge Lamberth declined to issue the injunction because the Government could not show that it would prevent any irreparable harm. Quoting from the declaration of Simon & Schuster's CEO, Judge Lamberth noted that "[m]ore than 200,000 copies of the Book have already been shipped domestically," and that "thousands of copies of the Book [have been shipped] to booksellers around the world." On that basis, he observed that "the horse is not just out of the barn – it is out of the country," and that, therefore, the court could not provide any meaningful relief.

A few hours after the ruling was issued, President Trump tweeted his enthusiasm for it, describing it as a "BIG COURT WIN," while also noting that, "with the book already given out and leaked to many people and the media, nothing the highly respected Judge could have done about stopping it."

Could the Government's Gambit Work in the Next Case?

Judge Lamberth's ruling denying the Government's bid to stop publication of the book turned on the fact that, by that point, it was far too late for any meaningful relief. Accordingly, he did not directly address whether, if the Government had moved before the horse was out of the barn, it could have obtained an injunction binding on Simon & Schuster under Rule 65(d)(2). In a different case, could a party use Rule 65(d)(2) to obtain an injunction against a publisher based on a breach of duty by an author or a source?

The answer should be no, even apart from any First Amendment concerns that would arise from the application of Rule 65(d)(2) in that manner. The limited purpose of Rule 65(d)(2) is to "ensure[] that a defendant cannot 'nullify' an injunction" after it is issued "'by carrying out prohibited acts through aiders and abettors' who 'were not parties to the original proceeding.'" Wash. Metro Area Transit Comm'n v. Reliable Limousine Serv., LLC, 776 F.3d 1, 9 (D.C. Cir. 2015) (quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945)). Accordingly, the Rule operates prospectively. That is, the Rule permits a court to hold in contempt a nonparty that "act[s] in concert" with an enjoined defendant "to violate the order." United States v. Phillip Morris USA, Inc., 566 F.3d 1095, 1136 (D.C. Cir. 2009) (emphasis added). The Rule should not permit a court to do what the Government asked Judge Lamberth to do – enjoin a nonparty (Simon & Schuster) from undertaking its own, independent, actions to publish a book based on an agreement with the enjoined party that preceded issuance of the injunction. Thus, Rule 65(d)(2) should not permit a party seeking an injunction to collapse the all-important legal distinction between an author/source, who may have obligations not to disseminate the information at issue, and a publisher, who is under no such obligation.

Simon & Schuster, Inc. was represented in connection with this matter by Lee Levine, Paul Safier, Joseph Slaughter, and Max Mishkin of Ballard Spahr, LLP, Naomi Waltman and Matthew Schafer of the ViacomCBS Law Department, and Veronica Jordan and Felice Javit of the Simon & Schuster Law Department. The Government was represented by Joseph H. Hunt, Michael Sherwin, Ethan P. Davis, David M. Morrell, Alexander K. Hass, Daniel F. Van Horn, and Michael J. Gerardi. Defendant John Bolton was represented by Charles J. Cooper and Michael W. Kirk of Cooper & Kirk, PLLC. Amici the Reporter's Committee for Freedom of the Press, The Association of American Publishers, Inc., Dow Jones & Company, Inc., The New York Times Company, and the Washington Post were represented by Bruce D. Brown, Katie Townsend, and Gabriel Rottman of The Reporter's Committee for Freedom of the Press. Amici American Civil Liberties Union, American Civil Liberties Union of the District of Columbia, and the Knight First Amendment Institute at Columbia University were represented by Brett Max Kaufman, Vera Eidelman, Alexia Ramirez, and Ben Wizner of the American Civil Liberties Union Foundation, and Jameel Jaffer, Alex Abdo, and Ramya Krishnan of the Knight First Amendment Institute at Columbia University. Amici PEN America was represented by Theodore J. Boutrous, Jr., Matthew D. McGill, Russell B. Balikian, and Jason H. Hilborn of Gibson, Dunn & Crutcher LLP, and Nora Benavidez of PEN America.

 
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