Tuesday, June 16, 2020

"Shape without form...gesture without motion"


I have to piece this together because WSJ is behind a paywall, but start there then go here:

And I think the explanation for Conway's cryptic comment is here:

In brief, the U.S. is alleging Bolton had a contract with the U.S. Government (?) through an NDA Bolton signed (which are not all the enforceable, as a matter of law.  Prior restraint is not a concept the 1st Amendment upholds, in brief.)  There's a lot of mention of "prepublication review," which strikes me (a novice in this area) as national security language (i.e., disclosure of classified information).  But the pleadings here tie that to the NDA, not to security statutes.  This strikes me as extremely odd, and indicates the Government has very few, and very weak, grounds for enjoining the publication (or actually, distribution) of this book.  And they know it.  They aren't really looking to block publication; but more on that in a minute.

The grounds for relief are primarily breach of contract (violation of the NDA), but they don't mention Bolton's upcoming interview which has already been announced.  Blocking that would be extremely difficult, but it's also hard to say that he can give all the inteviews he wants, he just can't release a book with that information.  That gets to the other half of this, so put a pin in that right now.

The prayer keeps mentioning "classified information," but I wonder how far that assertion is from Trump's, that all his conversations are classified.  Bolton knows how to release information without blatantly running afoul of national security, and surely Simon & Schuster's lawyers vetted the manuscript as best they could to avoid a prior restraint claim that would stick.  Embarassing Trump is not preventable by law; revealing sensitive information about U.S. security activities is.  I suspect Bolton and his publisher know the difference.  Again, establishing that classified information is in the book would be necessary to even get to a temporary injunction.  No court wants to stop release of a book based on an ex parte TRO hearing (the step before an injunction, when you're in a hurry), and the hearing on the "classified information" would take quite a bit to set up.  Again, if you reveal it in open court, just how "classified" was it.  No, that hearing would take special arrangements.

And again, courts are not anxious to block publication of books.  They may award damages (we'll get there), but blocking publication altogether (or distribution, in this case) is not encouraged.

The interesting part is that they don't join the publisher here, but want the court to direct Bolton to direct the publisher.  Conway probably knows what that's about (aside from the fact Simon & Schuster isn't a party to the NDA).  The fourth (last) clause would seem to be aimed at the interview coming up, but an interview already taped and ready to broadcast won't be even touched by the language here.  At best its grounds for damages, which we turn to now.

Alright, now it's clear to me the "prepublication review process" is required by the NDA.  This isn't really a claim based on national security law at all.  That reference to "classified information" is a Hail Mary meant to get the court's attention and hope the book can be frozen in the warehouse until they can read the manuscript and find something to call "classified information."  It's a fishing expedition, in other words, a desperate grab at blocking the book from distribution (as distinct from publication) which is really a distinction without a difference, but what else have they got. (Correction from having read ahead:  this suit is not about blocking publication at all.)

I'm very curious about the legal status of an NDA signed by a government employee and enforced by the government.  It seems to me the legal status of that arrangement is dubious, at best.  Trump could sue in his personal capacity to enforce an NDA he entered into with Bolton personally; but the office of the President using the DOJ to enforce an NDA makes that contract one with the government, and I find that a very curious proposition.  National security law protects government information from disclosure for reasons important to the government, but information about how Trump behaved around Bolton and while Bolton was in the Administration hardly strikes me as information important to the government, unless Trump really is l'etat.

 The clincher here is that this is a breach of contract suit, not a national security suit.  They sued Bolton (I'm working this out as I go) not because they don't want to try to stop publication (good luck with that anyway), but because they want to keep Bolton from getting the money for the book.  They want to enforce destruction of copies of the book (which I really don't think is gonna happen.  Bolton is not a spy revealing government secrets, to put it bluntly; nor is he Snowden, revealing NSA secrets from Moscow), but mostly they want the money.  Stopping publication based on breach of contract is pretty damned unlikely.  Establishing a constructive trust is more likely, if the court finds the government's claims to be meritorious (on that I'm agnostic, but I think it's pretty weak tea).

This is primarily just spite by Trump, and certainly a far cry from "criminal action."   Still, I'm wondering why the DOJ is involved in enforcing an NDA.  I really don't understand how a government bound by the 1st Amendment can enforce something like that.

And since I really am streaming my consciousness on this one, here's the case I was thinking of on the general principle of "prior restraint."  NYT v. U.S., the "Pentagon Papers" case (used to have a copy of those; wonder what I did with 'em? I bought it just because the Court said I could.).  That's why they're going for a breach of contract; they've got nothing else.

Still don't like the idea of the government enforcing this kind of contract.

And, continuing to report as I find it, this is interesting:

My analysis was based in part on the assumption the DOJ was seeking an injunction elsewhere in the petition (which I haven't been able to read).  But no!  Which means most of that "prayer for relief" is empty and meaningless, and what they really want is the constructive trust (the rest is useless if the book is released).  Which leads to more than a bit of incoherence in this pleading, if this tweet is correct:

I assume that's quoting the petition, but there is no national security claim being made here; it's only a breach of contract suit.  Without an injunction, the only relief they can actually get is the constructive trust, which probably satisfies Trump who imagines he'll get Bolton's money (actually it would go to the Treasury).  I really don't see the court awarding that, though.  It doesn't seem commensurate with the injury, since the suit doesn't allege even the color of a criminal violation (constructive trusts are usually to keep the defendant from benefiting from a serious criminal action or some breach of contract that includes slander or intentional infliction of emotional distress, something on those lines. A criminal act that's a felony, after all, is a crime of moral turpitude, and act so heinous it shows little regard for morality.  Hard to see a breach of contract case as a crime of moral turpitude, or an intentional infliction of emotional distress.  I just think the pleading has a fatal flaw:  the relief sought is out of proportion to the injury.  Then again, the government can't really allege damages like a private party could; it has to establish that Bolton should not profit from his act, even if his action is just exercising his First Amendment rights.

Yeah, I really don't see this succeeding.

Sorry to ramble like Trump at a rally, but I don't have the petition to review (not sure I would anyway, at this point), and now I see this:


True, the fourth clause for relief opens with the word "Enjoin," but that's hardly asking for injunctive (i.e., extraordinary) relief.  An injunction at the end of a case is not extraordinary, it's in keeping with the powers of a court.  Injunctive relief before a final hearing is "extraordinary," and is grounded on a showing that the party seeking the injunction will prevail at trial.  The hearing can, in other words, be a mini-trial that almost ends the case right then and there.  The DOJ is not asking for that, however.  No mention of an injunction, permanent or temporary; no filing for a TRO, a really emergency act which the court can grant with only the party requesting in court (leads to an injunction hearing within 10 days, or it dissolves).

"Enjoin" there is not even a throwaway line; it's a gesture literally without motion (sorry!).

This kind of guts the whole thing, too:

That's why there is no national security claim, and no attempt for a TRO; they don't have grounds for it.  "Pre-publication review" here applies solely to the NDA.  And I'm back to: what business is it of the government to enforce such things?

This also wrecks their legal claims:

They still can't.

This is a lawsuit filed for the "audience of one."  And that's more worrisome than anything John Bolton will face in court from the publication of this book.  I'm not worried about Bolton; I'm worried about the republic.

On the other hand, this ain't what some predicted:

Barr can't even end the government's prosecution of Michael Flynn; how was he ever going to prosecute Bolton for criminal violations of the law?

"Leaning together/Headpiece filled with straw.  Alas!"

Just glad to see somebody else noticed.  And this:

Assumes the allegations in the petition are true and correct.  I don't assume that at all.  Given the sloppy nature of what portions of it I've read, and the admission it passed a national security review, I can't imagine what "prepublication review" was not followed, especially since the claim is under the NDA, not national security law.  This, of course, is the danger of kibbitzing on someone else's lawsuit, but I'm not real impressed with the writing in this one.  I don't think it's open and shut at all, because the government seems to throw everything against the wall to make it stick here, and falls back on "Oh, just give us a constructive trust, everything else is gonna be moot before the defendant even files an answer."

And just to continue beating this carcass, a little background information:



Bottom line? I'm imagining a Federal judge in a hearing pinning the DOJ attorney with a steely gaze and asking: "Just what are you asking the court to do here?" And frankly, by the time they finally get this case to a state the government can present its case for final hearing, Trump will be a private citizen again and Barr will be facing charges alongside him.
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1 comment:

  1. The Thought Criminal7:07 PM

    My guess is that someone inside the Trump regime is getting paid to whip up publicity for the book.

    In some ways I'm hoping Barr goes to prison more than I wish Trump would. I hope he goes to prison for longer than John Mitchell did and that he finds himself forfeiting large amounts of money. I strongly suspect that Barr has committed major felonies not excluding the ultimate one.

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