Keystone Kops in Kourt

Justice Department seeks emergency order to block publication of Bolton’s book, via @thamburger @PostRoz @DevlinBarrett @hsu_spencer https://t.co/82qpqVea4s

— Philip Rucker (@PhilipRucker) June 18, 2020

Wednesday’s move sought to formally enjoin Bolton from allowing his book to be published, a legal strategy experts said was unlikely to succeed, particularly given that the book has already been printed and shipped to warehouses and copies distributed to the media for review.

This is, frankly, absurd.  But DOJ can't enjoin Simon and Schuster, because only Bolton is a party to their lawsuit.  The court can't order Bolton to halt distribution of the book, because:

A) that's already happened.

B) Bolton isn't in charge of that.*

C) If Bolton did take legal action to stop the release of the book, Simon would sue Bolton for breach of contract, and the whole thing would be a legal mess.  So why would Bolton do that, because

D) the only other leverage DOJ has is to have Bolton's proceeds put in a constructive trust.  They can't get that on a TRO, much less a temporary injunction.  Not without what will basically amount to a full trial, including proof there is classified information in the book, and proof the review process has not been arbitrary or executed merely to impede publication, and proof Bolton violated an NDA by including material in the book that constitutes such a violation.

That's not a hearing, that's a trial.  The court won't conduct that without allowing extensive discovery first.

I really can't imagine the court directing Bolton to tell Simon to warehouse the book and withdraw it from any vendors who already have copies.  I just don't know how that order would be with in the power of the court to issue, because I don't know how it is within Bolton's power to comply.  And if there really is a national security issue, why not join the publisher in the suit from the beginning, so the TRO could have a chance?

The court could order Simon to freeze the book, but again, Simon is not a party to this suit.  On the other hand, Simon is the only party with power to freeze distribution.  If Bolton says "Fuck you," the court has to give him a chance to cure his contempt, then hold a contempt hearing, and by then the books #1 on Amazon.  So what's the legal strategy here?  The court has no authority over Simon at this point.  Even if the court issued a TRO to Bolton, the worst it could do is hold him in contempt for failing to comply (as I say, that would just drag things out), and I'd LOVE to see that one go up on appeal (and be reversed almost before the appeal landed).

Honestly, these kinds of shenanigans would shame a first year associate at a small law firm, much less  the legal might of the DOJ.  This is not a lawsuit, it's a Keystone Kops kaper.  Without the slapstick.

*This is how stupid this is:  I keep trying to make sense of it.  So at the TRO hearing, the judge is going to ask "What do you want me to do?", and the only answer there can be is, "Tell Bolton to tell Simon to freeze the books."  And the judge says "If I do that, and Bolton says he did, and he says Simon said "No," what then?"

And they have no answer to that.  And the judge says "So why are you wasting my time?"

JUST IN: Simon & Schuster's response to the DOJ's new filing against Bolton: "A frivolous, politically motivated exercise in futility. Hundreds of thousands of copies of the book have already been distributed around the country and the world."

— Brian Stelter (@brianstelter) June 18, 2020

See?

One thing you need to show to get temporary injunctive relief is that the relief would accomplish something. It’s hard to see the point of an injunction here, where the publisher (not even a party) has already shipped the books out and the press already has copies. https://t.co/JeIkxXi9Pa

— George Conway (@gtconway3d) June 18, 2020

I know I'm just piling on at this point, but this is incompetence by the DOJ that would get any lawyer associated with these actions fired instanter at any lawfirm in the country.  This is the kind of thing a good legal assistant would know shouldn't be done.  This is beyond incompetent and well into "should have their federal court license suspended" (yes, federal courts license lawyers to appear before them, mostly to keep this kind of shit out of their courts).

Exactly. It’s a frivolous motion. Bolton’s attorney should send DOJ a safe harbor letter in anticipation of moving for Rule 11 sanctions.

— Andrew C Laufer, Esq (@lauferlaw) June 18, 2020

I don't think it would be hard to get the court to agree on sanctions for this kind of stuff.