JOHN BOLTON AND STORMY DANIELS: THEIR STORY

Former National Security Adviser John Bolton and porn star Stormy Daniels have much in common. Both signed Non-Disclosure Agreements with Donald Trump, and despite that incumbrance, both are working to cash in on their association with The Donald.

Stormy is ahead on points: She did it for money ($130,000, paid by candidate Trump via his then-attorney Michael Cohen,) she has told her story, and is a hot ticket on the strip-club circuit. 

Bolton has also received money,($2,000,000 advance from his publisher) but Trump's current law firm, the United States Department of Justice, is suing to silence Bolton and seize his loot.

Watch out for a deluge of so-called First Amendment Specialists' opinions on the Bolton matter. Here's the skinny:

Daniels is home free. Trump still denies her story, but he says he ain't gonna sue to stop her from repeating her claim. (And besides, methinks his base thinks more of him for committing adultery with a porn star!)

Bolton, on the other hand, has written a book that clearly embarrasses the President, who is seething. Pre-publication leaks include, most prominently, a report of a Trump-Bolton conversation in which Trump confesses he was in fact guilty of the charge in the bill of impeachment, i.e., he did use the threat of withholding military aid to Ukraine unless they helped him find dirt on Biden. And there is lots more, some of which is set out below.

Now that's good dirt.

The Issues in the Bolton case?

A stew:

Fact issues:

Trump claims the book contains classified information. Bolton says he submitted the book for clearance, engaged in an iterative negotiation with the assigned government representative, made changes she asked for, and she then confirmed the book no longer contained classified information. But the DOJ complaint alleges there remained a second level of review required for clearance, and Bolton never completed it.

Trump says the book contains lots of classified information because "Every conversation I have in the White House is classified!" That Trump quote is directly on point with a line from Justice Brennan's prescient concurring opinion in the 1971 Pentagon Papers case:

"When everything is classified, nothing is classified and the system becomes one that is manipulated by those intent on self-protection and self-promotion."

Bingo.

Legal issues:

Bolton's major legal argument, is that the government's effort to enjoin publication of his book is a prior restraint on speech that violates his First Amendment rights. The overwhelming judicial view, most prominently applied in the Pentagon Papers case, is that a government effort to enjoin speech is unacceptable unless the government can allege and prove the speech presents a "grave and irreparable danger" to the United States. 

So heavy is the burden the government bears to meet that test, the Court-enunciated examples of speech that would qualify for prior restraint are but three in number:

In time of war, the speech in question would:

i) reveal the timing of departure of troop ships, or

ii) reveal the number and location of troops in the field, or

iii) obstruct the government's efforts to recruit an army.

In no way does the government complaint against Bolton meet that test. Not even close.

But Trump has another arrow in his quiver. The Pentagon Papers case, was about  a naked government claim of harm to national interests. But this complaint alleges that Bolton signed a Non-Disclosure Agreement that bars him from revealing confidential and classified information, during and after his employment, and requires pre-publication government clearance of any discussion of events connected to his employment.  Claiming a breach of that agreement, the government seeks not only an injunction against publication, but the impressment of a constructive trust upon any money Bolton receives from his book.

Now that is interesting. The First Amendment does not bar abridgement of all speech. There are lots exceptions not mentioned in the Constitution: criminal conspiracy, child porn, threats, false advertising, FTC cease and desist orders, and lots more.

Is the government contract also an exception to the First Amendment ban on abridgment of speech? Does the First Amendment bar a prior restraint arising of a court order granting specific performance of a contractual promise not to speak?

In other words could Trump have enjoined Stormy Daniels from speaking? In fact, before Trump relented, an arbitration did just that!

First Amendment lawyers would be quick to point out a major distinction between the Stormy and Bolton contracts. Stormy made her promise to a civilian, who could sue to enforce the promise. But the restraint on Bolton was created by a government contract. It was the government's contract that restricted speech and that arguably was an illegal prior restraint on speech. Does that make a difference?

Apparently not. Consider the matter of CIA officer Frank Snepp, who wrote a book about his experiences on behalf of the Agency in Vietnam. But Snepp did not seek or get government pre-clearance of publication, as was required by his employment contract. The Supreme Court in 1980, by a vote of 6-3,  i) enjoined Snepp from further contract violations, (i.e., further unapproved speech), and ii) impressed a constructive trust on his book earnings. The ruling did not depend on any classified information being in the book.

So the 1971 Pentagon Papers case may not save Bolton.

Bolton's best argument against a prior restraint may well be that the horse has left the barn. The book has already been distributed to journalists as part of pre-publication date (June 23) publicity, and Bolton himself is on the talk-show circuit. The press has already published highlights. So we already know not only about the President's confession re the Ukraine issue that was the subject of the impeachment charges, we know that Trump also sought the China Premier's  help with Trump's reelection, that Trump was so uninformed he asked if Finland was part of Russia, that Trump did not know if the Britain had the bomb, that during the negotiations with North Korea, Pompeo told Bolton that Trump "was full of shit," that Trump regularly obstructed justice to help foreign leaders he liked, and lots more.

The book has been printed, bound, and shipped to bookstores and Amazon, where it is the number one best-seller, but not yet shipped to customers.

But even if the government loses its effort to enjoin sale of the book, Bolton may not be in the clear. The second prong of the Snepp decision may puncture Bolton's balloon. If the government wins its argument that Bolton published without fully complying with his contract obligations to get government clearance prior to publication, the court can still impress a constructive trust on all Bolton's proceeds from the book.

And that, my friends, is my idea of a happy ending. Let us not forget that Bolton is despicable. He knew this president was unfit, but for personal  financial gain -- he wanted to hype his book, but didn't want to reveal his secrets so far in advance of the publication date-- he rejected any notion of patriotism and refused to testify in the House impeachment inquiry. (But today, while plugging his book, Bolton has the chutzpah to criticize the House for not including his revelations in its Bill of Impeachment!)

So the result to be wished for is:

i) The court denies Trump's motion for a preliminary injunction, the book is distributed, and the public learns all the details of Trump's incompetence and perfidy, and

ii) Because Bolton violated his contract, the government imposes a constructive trust on his earnings.

Bottom line:  we get the goods on Trump, and Bolton gets nothing but a whopping lawyer's bill.

Nice, huh?

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

And if you want to read about a more typical Trump litigation, i.e. one in which Trump is all bluster and is forced to pay his adversary's legal bill (c'est moi), check out my memoir "The Client Decides" on Kindle, or Amazon books.