Tuesday, June 16, 2020

Striking Language from the Trump Administration's Complaint in United States v. John Bolton

By Stuart Benjamin - June 16, 2020 at 10:00PM

On John 10, John Bolton's lawyer (Chuck Cooper) wrote an op-ed in the Wall Street Journal laying out the course of dealing with the Trump Administration regarding Bolton's book The Room Where it Happened. As Cooper noted, these reviews are handled by NSC staff, and there was a four-month review of his book by the NSC's Senior Director for Records Access and Information Security Management (Ellen Knight). On April 27 she indicated that she had given Bolton all her edits, but Bolton never received a letter confirming clearance. On June 8 John Eisenberg from the White House sent Bolton a letter saying that the book still contained classified information. And today the Trump Administration filed a complaint against Bolton to prevent the publication of his book, stating that it contains classified information.

One notable aspect of the complaint is how much it agrees with the course of dealing that Cooper recounted. The government's complaint does say that the government hadn't completed its review, but it doesn't dispute that the NSC staff review was complete. Rather, it says that Michael Ellis, a Trump appointee at the NSC (who, coincidentally, has been accused of manipulating the classification system to benefit Trump) "commenced an additional review" and raised new objections. The complaint says that Ellis has access to a greater range of information than Knight did. But there is more: the key paragraph (paragraph 51) states

[Ellis] commenced this review at the request of the Assistant to the President for National Security Affairs, who, upon review of the version of the manuscript reflecting Ms. Knight's latest guidance, was concerned that the manuscript still appeared to contain classified information, in part because the same Administration that [Bolton] served is still in office and that the manuscript described sensitive information about ongoing foreign policy issues. (Emphasis added.)

The italicized statement is notable for two reasons. The first is the term "sensitive." All sorts of information is sensitive (politically sensitive, personally sensitive, etc.), but that doesn't make it classified. There is a ton of sensitive information in every Administration, but much of it isn't classified. The second is the emphasis on the same Administration being in office. A given piece of information either is or is not classified. And if it is classified, it remains classified until it is declassified. The passage of time (usually decades) is relevant to decisions to declassify. But there is no legal significance to the fact that a piece of information was generated in the current Administration. In the next Administration, classified materials won't magically become unclassified or less classified – they will remain classified unless and until they are declassified. It is true that this Administration is currently dealing with sensitive matters that Bolton likely dealt with, but the same will be true of future Administrations (tensions with China over bases in the South China Sea won't go away on January 21, 2021). It is probably the case that, as a practical matter, some information is likely to leak over time (as it already has, of course), but the legal obligation not to reveal a given piece of classified information will remain in future Administrations. (I learned classified information when I was in the Office of Legal Counsel in the early 1990s, and I have never revealed it to anyone, as I am under a legal obligation not to do so.) Simply stated, the fact that Bolton served in the current Administration is legally irrelevant.

So why make this statement in a legal complaint? My guess is because the Trump Administration knows that the post-Knight process might be seen as an ad hoc and unprincipled way of engaging in a review that is supposed to be highly structured and principled, and they want to have some justification for adding a layer of review after the ordinary review was apparently completed. But this reasoning embodies a very expansionist approach. The argument in the complaint seems to be that even if information ordinarily wouldn't be classified, an Administration should have additional leeway to classify information during that Administration. But information created during a given Administration is always what it most wants to keep secret. It is already the case that a given Administration has a huge incentive to classify materials that it finds embarrassing but that don't contain classified information: they can at least prevent the publication of those embarrassing facts while the President is in office. That incentive is troubling enough. The argument in the complaint would add to that incentive a greater legal ability for this and future Administrations to hide their own embarrassing actions until after the Administration left office and could no longer be punished by the voters. A legal rule that says "You can't publish while the President is in office" is in the President's interest. But I don't see why it's in the national interest.


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