What’s Next for John Bolton?
Three past cases involving disclosure of classified material hint at the range of possible outcomes for Trump’s former national security advisor.
NOW THAT HIS HOUSE AND OFFICE have been searched by the FBI, what is going to happen next to John Bolton? Until the Department of Justice provides information to the public about the basis for the search warrant, we can only speculate—but most speculation has with good reason focused on Bolton’s 2020 memoir, The Room Where it Happened, which the first Trump administration claimed was chock-full of top-secret information. In January 2020, a National Security Council official wrote to Bolton’s lawyer claiming that if he failed to respect the process in place that required books to receive clearance before they were published, he would be in violation of the Espionage Act:
The manuscript appears to contain significant amounts of classified information. It also appears that some of this information is at the TOP SECRET level, which is defined by Executive Order 13526 as information that “reasonably could be expected to cause exceptionally grave harm to the national security” of the United States if disclosed without authorization. Under federal law and the nondisclosure agreement your client signed as a condition for gaining access to classified information, the manuscript may not be published or otherwise disclosed without the deletion of this classified material.
In a reply to the White House, Bolton’s attorney had stated: “We do not believe that any of the information could reasonably be considered classified.” The book was full of embarrassing revelations about Donald Trump and his presidency, which Bolton saw close up as his national security advisor from April 2018 to September 2019. The Trump White House was using the prepublication review process in an attempt to squelch the book’s revelations.
In the months that followed, the Trump White House and Department of Justice attempted a variety of convoluted tactics against Bolton, both civil and criminal. In the civil case, the judge ruled that Bolton probably had disclosed classified information but that an injunction would serve no purpose as the book had already been published. The criminal probe, meanwhile, was shut down by the Biden administration in June 2021.
But now a legal process against Bolton has resumed. The search warrant was signed by a federal magistrate, who was persuaded that there was probable cause that Bolton had committed a crime and evidence of that crime could be found on his premises.
If we assume for purposes of discussion that such evidence was found, where does Bolton stand? The question can be put another way: Is Bolton in the position of a Victor Marchetti, a Frank Snepp, or a Daniel Ellsberg? These three men were each at the center of landmark cases involving the unauthorized disclosure of classified information.
Former CIA operative Victor Marchetti coauthored a book, The CIA and the Cult of Intelligence, that detailed highly sensitive intelligence sources and methods, among other secrets from his career at the agency. When, in 1973, word of Marchetti’s pending book reached the CIA, agency lawyers first considered recommending his prosecution under the espionage statutes but ultimately decided to obtain a restraining order preventing Marchetti from showing his manuscript to anyone. Marchetti sued but lost. The court ruled that the government has a “right to secrecy” but the government has to act expeditiously in the service of that right. The CIA tried to excise 339 passages from Marchetti’s book, but ultimately settled for just 168, in a process that dragged on for a year. (So much for expeditious.) Knopf published the book in 1975.
CIA officer Frank W. Snepp III served in Vietnam duiring the fall of Saigon—he was among the last CIA officers to depart the American embassy roof via helicopter in 1975—and was horrified by the friends the Americans abandoned when it quit Vietnam (very much as veterans of the war in Afghanistan are today, a half-century later, horrified by the callousness of the United States toward our loyal friends there). Among those left behind was Snepp’s own Vietnamese lover, who took her own life and that of their infant son. Snepp’s scathing depiction of the end of the war, Decent Interval, was published by Random House in 1977.
Marchetti and Snepp had each signed a promise not to publish any information drawn from his CIA employment “without specific prior approval by the Agency.” But while Marchetti kept the promise. Snepp did not: He told his former bosses at the agency that he intended to submit his manuscript for review but he did not follow through. Ultimately, the Carter Justice Department, rather than attempting to seize and pulp the book, sought instead to prosecute and punish Snepp for violating his agreement. The courts sided with the CIA in agreeing that the failure to have the book’s material reviewed warranted punishment regardless of whether actual classified material had been revealed or caused harm. The Court ordered Snepp to “disgorge the benefits of his faithlessness”—to surrender to the government his $120,000 advance and all subsequent royalties from his book. The case went all the way to the Supreme Court, which upheld the ruling.1
Daniel Ellsberg’s case is better known nowadays than Marchetti’s or Snepp’s. For providing the Pentagon Papers—a classified multi-volume study of the Vietnam war—to the New York Times, Ellsberg, a former Pentagon and RAND Corporation employee who had authored part of the study, was indicted on fifteen counts of conspiracy, conversion of government property, and espionage. Ellsberg and his collaborator Anthony Russo were put on trial in January 1973 in a case that dragged on for months. They both faced lengthy prison sentences. The prosecution collapsed, however, not long after it was revealed Howard Hunt and G. Gordon Liddy, two of Nixon’s agents, had broken into the offices of Ellsberg’s psychiatrist to search for information that could be helpful to the prosecution.
IF BOLTON DID INDEED PUBLISH sensitive classified information in his book, as the judge in the 2020 civil case concluded, and if the statute of limitations has not yet been passed, then Bolton stands in a similar posture to that of Snepp, Ellsberg, and the New York Times. Like Snepp, Bolton could be asked to return all funds earned from the sale of his book. Like Ellsberg, he could also be prosecuted under the espionage statutes for unauthorized possession or transmission of national defense information. Ellsberg was fortunate that his case was tossed out thanks to Nixon’s misdeeds. Bolton might not be so lucky.
A First Amendment defense would be unlikely to prevail. In the Pentagon Papers case, the Court ruled that the New York Times could not be restrained in advance from publishing the secret information in the study. But prosecution after publication was another matter entirely. A majority of the Court held that the Times could indeed be prosecuted. Justice Byron White, reviewing the history of the Espionage Act, noted that Congress “appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type that Congress has itself determined should not be revealed.” How our current rightward-tilted Court would rule is not hard to guess.
If, like Ellsberg, Bolton is indicted under the espionage statutes, it would lead to an epic trial. Bolton’s main line of defense would likely be that the information in his possession or published in his book was not national defense information—in other words, that it was not of a nature to cause damage to the national security of the United States.
Whatever one thinks of Bolton’s politics and policy ideas, he is a man—and a public servant—of integrity. The FBI raid on Bolton’s house and office is in all likelihood not about national security at all but a step designed to punish a prominent Trump critic, something which Bolton has bravely been in spades.
I discussed the Marchetti and Snepp cases at greater length in this 2020 article.
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