Of Horses and Barns and Trash Fires

END) I could keep going & going but I'll stop w/this.

I see Govt couldn't resist one more time - in case ppl missed it before - to reveal #Bolton's home address.#Shameful & #unprofessional

— Mark S. Zaid (@MarkSZaidEsq) June 18, 2020

Zaid makes excellent points re:  how Bolton screwed this pooch, by deciding on his own he was free to publish this book.  I could have told you that, and I've never worked these cases like Zaid apparently has.  So I don't have a dog in this fight; I don't care if Bolton's book is ever published.  What gets me is how badly the government has screwed their pooch, and not just in releasing Bolton's home address.

Zaid thinks the governments application for a TRO is a mess.  I tend to agree.  I certainly think the attempt to enjoin the publisher as the "agent" of Bolton doesn't pass the smell test. Bolton is not in control of when Simon publishes, how they distribute, who they distribute to, and in what manner.  He signed a contract for a book, took their money, delivered his book, and now expects royalties.  He hardly has the control of master over agent that agency law contemplates in this matter.  So what do they think they're doing?

(2) Quick analysis: this is unprecedented, meaningless Govt end-run attempt of SCOTUS Pentagon Papers decision to block publication of a book that has countless copies already in public domain. No way media outlets will be blocked from publishing further excerpts.

— Mark S. Zaid (@MarkSZaidEsq) June 18, 2020

Trying to get around NYT v Sullivan, is what.  That's not likely to work, especially since the horse has left the barn.  Especially because of this:

5)Even though Pentagon Papers case was litigated in about two weeks time from start to finish, 1971 is not 2020. I would be shocked this Motion would be decided, much less even briefed, in time to stop publication on Tues. That's just not how book distribution system works.

— Mark S. Zaid (@MarkSZaidEsq) June 18, 2020

Yes, again, why isn't S & S a party to this suit?  If these secrets are that critical, why has Government waitied 'til the last minute and done such a half-assed job of it?  If S & S were party to the suit, there'd be no question the TRO would reach them.  Whether it would reach the bookstores with unopened boxes (I guarantee you that's where most of the books are) is another matter.  Going through Rule 65 is farcical, especially if extremely sensitive state secrets must be protected.  DOJ ineptitude seems to put this more firmly in the cross-hairs of NYT v. Sullivan than out of them.  And then there's the sheer practicality of the matter:  can this motion be argued, briefed, and decided before Tuesday?  And besides, are all the bookstores and Amazon "agents" of S & S?  Is that the legal theory?  Because even holding books until publication release (I worked in a bookstore when the Harry Potter books were being published) is largely a matter of asking, not demanding.  Some bookstores always sold the book before the publisher wanted it sold, and publishers need bookstores, so they largely did nothing about it. Bookstores are not "agents" of publishers, in any sense of that word.  The publisher may say "please" and the bookstores can say "Screw you."  That's not a master/agent relationship at all.  It's much more analagous to an independent contractor.  Again, I'm back to the judge turning to the government and asking:  "What do you want me to do here?", and not in a way that implies he'll take any answer as a directive.

These are some of the reasons this application is a "trash fire."  Even if the judge issues a TRO by Tuesday, I can't see the court seeking out bookstores across the country to hold in contempt, or U.S. Marshals or the FBI tracking down booksellers and buyers and charging them with espionage or violations of national security laws.  These horses aren't even in the barn anymore.  They've been sold and shipped to parts unknown.

This is ridiculous.