To Enjoin or Not To Enjoin....

A few things to keep in mind for tomorrow's hearing before Judge Lamberth re USG effort to enjoin publication of Bolton's book. 1/ https://t.co/fWFmSeuUcp

— Jack Goldsmith (@jacklgoldsmith) June 19, 2020

That is the question.

4. The government argues that pursuant to Federal Rule of Civil Procedure 65(d), Bolton’s publisher, Simon & Schuster, would be subject to the injunction, as would “[c]ommercial resellers further down the distribution chain, such as booksellers,” once they have actual notice of it.  Such an injunction would almost certainly be unconstitutional as applied to booksellers and the like—and possibly even as applied to Simon & Schuster, although perhaps that would be a closer call if the publisher is acting as Bolton’s agent.

5. In order to obtain a TRO or preliminary injunction, the United States would have to show that it would otherwise be “irreparably harmed.”  But could such an order or injunction prevent any harm here?  Bolton’s book has been widely distributed to booksellers, and to journalists who have already written reviews of it.  Bolton already published an excerpt from the book.  According to Bolton’s publisher, “hundreds of thousands of copies of the book have already been distributed around the country and the world,” and, as noted above, any injunction could not constitutionally prohibit booksellers from selling it.  Widespread dissemination of the book is thus inevitable, regardless of any injunction—and any classified information contained therein will be out of the bag.  All foreign allies and adversaries will learn of it regardless of what Judge Lamberth decides.  How, then, can the government claim that it will be “irreparably harmed” without the injunction?   Is there even a justiciable controversy with respect to the injunction since the injunction cannot bring the government the relief it requests: non-disclosure of the classified information allegedly in the book?

I post this because I graduated law school 33 years ago, and quit practicing law (to go to seminary) 27 years ago (longest 6 years of my life).  I figured I'd forgotten everything, but the basics of injunctive relief (a theory based in equity, meant to preserve parties in situations where, as they said above, "irreparable harm" would occur without the injunction or TRO (which is only valid for 10 days, while the court gets a chance to hear a full blown case for and against the injunction.  A TRO is an emergency hearing, sometimes conducted with just the moving party present) have stuck with me, I'm happy to say.  As this says implicitly, the judge has to ask the government tomorrow:  "What are you asking me to do?"  Enjoining Simon & Schuster would be unconstitutional (1st Amendment prior restraint, I assume); enjoining all the books sellers from Amazon to the independent I used to work for (who I guarantee has boxes of the book in their back room tonight)?  Literally impossible.  Everybody knows what's in this book.  You know China and Russia and most of the world's governments have copies by now.  What good does the injunction do in that case?  It can't repair the damage, and it can't stop it; and it's can't really be enforced even if it could stop the harm.

The real question will be:  why did the government wait so long to do this?  Their own pleadings indicate they had notice of Bolton's intent to publish long, long ago.

I may have to carve out time to listen to this hearing if I can find it.

(There is also good information in the Twitter thread that's not covered in the blog post.)