Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims

In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.

In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.

I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews.

Cooper leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.

Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.

I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.

But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).

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63 replies
    • harpie says:

      I should have realized Marcy had already responded to this:
      https://twitter.com/emptywheel/status/1221793821597585413 5:55 AM – 27 Jan 2020

      Understand why this is important: GOP Senators (and even House) have staked their careers on a defense story that the White House encouraged. Now they look like they were part of the cover up. They were betting Trump had all this nailed down better.

      • BobCon says:

        I assume the White House is calculating that wavering GOP will feel it even harder to remove themselves from the coverup the sloppier it gets. That calculation has been true so far.

          • earlofhuntingdon says:

            When your shoddy admin. results in losing even a questionable right to assert privilege – allowing shit to hit the fan – the only redoubt is to threaten those who waver.

            Mr. Trump has a problem, though. His career is full of incidents where he issues threats and then caves to anyone with remotely similar power.

            That shows Trump has forgotten much that Roy Cohn tried to teach him. A real mob boss does not alert a target by issuing threats. He just does it. Word gets around.

          • Mitch Neher says:

            harpie said, “I keep thinking about the ‘heads on pikes’ comment.”

            And now I’m doing a double take on Bolton’s “hand-grenade” remark.

            Who else would submit a hand-grenade for prepublication review?

        • orionATL says:

          i’d guess that the Republican political swells serving the nation in our senate will retain their fear of the great unwashed who thrust them into power. but….

          one never knows when the damn might break with a rush…

          • Juanito II says:

            Keep your ears/eyes on Murkowski, Alexander and Saxe. Romney and Collins have jumped the bag. Trump’s approval rating in Alaska has gone upside down.

  1. harpie says:

    Cooper mentions the NDA’s. How do they fit in to all this?

    […] As I mentioned, Ambassador Bolton has carefully sought to avoid any discussion in the manuscript of sensitive (“SCI”) or other classified information, and we accordingly do not believe that prepublication review is required. We are nonetheless submitting this manuscript out of an abundance of caution, as contemplated by the nondisclosure agreements that he entered commencing with those of April 5, 2018 immediately prior to his entry on duty. […]

    • JAFive says:

      Everyone who holds and SCI clearance has to sign an agreement to submit manuscripts for pre-publication review. Something like this: https://fas.org/sgp/othergov/dd_1847_1.pdf. It’s not an NDA in the sense that might be used in the private sector and the government can obviously fudge a bit to squash information but it really only pertains to classified material (which it would be criminal to disclose in any case).

      • harpie says:

        Thank you. I should have remembered that.
        I immediately thought of the Trump NDA’s that we heard about early in the term, for “white house officials”…or something like that. I don’t really remember what happened with those.

          • P J Evans says:

            Not in my memory. It may be review to make sure NDAs aren’t breached, though. (I’m not sure whether the WH NDAs are even legal. Classified information isn’t under an NDA, but under legal restrictions.)

          • Eureka says:

            From what I recall of, e.g., Nada Bakos repeatedly talking about her book when it was stuck in pre-publication review, “NDA” (or similar phrasing) was never used.

    • Vicks says:

      Found this
      SUBCHAPTER II—EMPLOYEES’ RIGHT TO
      PETITION CONGRESS
      § 7211. Employees’ right to petition Congress
      The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.
      (Added Pub. L. 95–454, title VII, §703(a)(3),

      In here https://www.govinfo.gov/content/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partIII-subpartF-chap72-subchapII-sec7211.pdf

  2. Badger Robert says:

    Thanks again to Ms. Wheeler. I still think Bolton would be better off talking in a non legal setting. He can pump his book and make some disclosures, and there won’t be any adverse lawyers.
    In the Senate there will just be a mass of nonsense privilege assertions.

  3. chaoslechler says:

    Interesting timing correlation of the WH receipt of Bolton’s manuscript for pre-publication review (12/30/19) and the assassination of Soleimani (1/3/2020) which Bolton had been long proposing. Any chance these events are related?

    • Rayne says:

      That struck me as an interesting coincidence at the time, like compensatory action for Bolton’s silence. Need to check the date that Trump was presented the options for response to contractor’s death, though.

      Relatedly, wonder why Bolton was photographed wandering around on the street in Qatar about a week ago.

  4. foggycoast says:

    schumer needs to, on the senate floor, repeatedly dare trump to testify under oath in front of the senate. after all, no one can stop him from testifying. let the world see he is scared to defend himself or let him lie under oath. if mcconnell does not allow it the Dem candidates can all use that effectively in the elections and trump’s victory lap will be met with calls that he is chickenshit.

    • Badger Robert says:

      A person has a right to refuse to testify. But we also draw an inference from assertion of that right. Those who are innocent usually have a story that checks out long before trial.

    • John Paul Jones says:

      Schumer just did. On CNN, not the Senate floor. Paraphrase: ‘Of the two people who were party to Bolton’s conversation with the President, only one of them is refusing to testify under oath to the truth of his version.’

  5. harpie says:

    LOL!!

    Three Tweets:
    1] https://twitter.com/reporterjoe/status/1221811635196768256
    7:06 AM – 27 Jan 2020

    INBOX: [Screenshot: GOP Senate Briefing: CANCELLED: Barrasso, Lankford, Lee, Graham on impeachment […] 11:35AM CANCELLED”]

    2] https://twitter.com/emptywheel/status/1221812627501993986
    7:10 AM – 27 Jan 2020

    Profiles in courage.

    3] https://twitter.com/JakeSherman/status/1221817761862766593
    7:30 AM – 27 Jan 2020

    Update: Barrasso and Braun will do this presser.

    • harpie says:

      Maybe this is where Lankford, Lee and Graham are instead of at the hastily un-cancelled press briefing:

      https://twitter.com/DanaBashCNN/status/1221813036027207680
      7:11 AM – 27 Jan 2020

      Source familiar w/ conversations ongoing since the Bolton news broke tells me the White House is hearing from GOP senators who are frustrated that at least someone in the WH had the Bolton manuscript since the end of December and they were kept in the dark.

      • Vicks says:

        They are “frustrated”?
        Give me a break.
        These GOP senators are getting played, and It’s laughable that they would think three years of kow- towing to Trump equals his respect or protection.
        Trump doesn’t give a sh*t about their reputations, “Trump only cares about the big stuff that affects him personally”

        • I Never Lie and am Always Right says:

          Wouldn’t it interesting if it became known that Moscow Mitch and some other Senators knew about the contents of the manuscript in advance but that other Senators didn’t know.

          Personally I take these stories about senators feeling blindsided with grain of salt. I think it more likely than not that all Republicans in the Senate were aware of the contents of the manuscript and only feel blindsided because someone let the cat out of the bag.

          • Vicks says:

            Although I have no clue how it could have happened (clearly the party of Trump knew to be on the lookout for the submission of Bolton’s book) if those who needed to know knew, I would think we would be able to look back and see more evidence of the knowing….
            Unless they know, and don’t give a crap because they are confident that Republican senators, in order to stay off the hot seat, will allow themselves to be herded into a corner and forced to give their unconditional blessing to Trump’s magic wand.
            Poof!
            What John Bolton book?

  6. harpie says:

    Schiff wants the underlying documents … is not as interested in the manuscript:

    https://twitter.com/ShimonPro/status/1221813736429838336
    7:14 AM – 27 Jan 2020

    Notes…memos…tapes… Adam Schiff this morning on CNN said that he is more interested in Bolton’s notes than the manuscript: ”These notes took place while the events were happening, while they were fresh in his mind. Those in many respects are more important than the manuscript”

    • bmaz says:

      Golly, if only there was a mechanism, say maybe something like a formal impeachment inquiry, where Schiff could have demanded such things. Without whining after the all too hasty and shallow fact.

      • Geoff says:

        Oooh Ooooo!! Me, me!!!

        Uhhhh, Plea Bargain!!!!!

        What, wrong again? OOF…Dang it!!!

        Uh, starts with an S, I know this!!!! Ssssss….subbbb, umm, subbbbb, submarine? Gosh, this is hard. Maybe Nancy knows.

      • Jason Stephens says:

        Give me a break. Look how this is playing out. When do you think the subpoena fight would have come to an (unknown) resolution? This was a calculated risk with one of the goals being that republican Senators would be forced to vote on the record to support the cover up or stand at least minimally for the rule of law. If it was two years ago going to court would have been the way to go. Timing forced the hand. With that said I hope the House, SDNY, or whoever else continues to pursue all legal recourse to get as full a version of the truth out however long it takes, on the Ukraine matter and all others. There are different strategies and goals for the short, medium, and long term.

        • bmaz says:

          No, “Jason Stephens” you give me a break. What kind of person is too timid and cowardly to fight for what is right and they believe in? “Timing” did not force jack shit, and to any extent it did, it was solely because Pelosi et. al sat on their asses for so long.

          And, please spare me the “two years in court” bunk. As I have explained previously the Nixon subpoena case went from issuance to Supreme Court decision in about four months. Please understand that you are blowing shit at people that actually know historical precedent and how to litigate things in court.

      • Mooser says:

        You have turned out all too prescient about the slow, half-hearted and bumbling steps toward impeachment.

      • dat says:

        bmaz,
        I think you underestimate the constraints on the Speaker. You, and I dare say all, readers of this blog know there was enough predicate (hope I’m using that word right.) to open an investigation in Jan 2017. That was emphatically not the position of “America” as a whole that month. I wish the house had started impeachment sooner, I think they could have started impeachment sooner, but when is a judgment call. Leaders have to be in front, but as has been pointed out before, they better not get too far out in front. It’s my personal opinion that Speaker Pelosi is a brave woman.

          • bmaz says:

            Hi there disingenuous, if not straight up duplicitous, “dat”.

            The time frame is never crime to SCOTUS, you are just trying to gaslight people here with that kind of garbage.

            As explained previously, the actual time from subpoena to Supreme Court decision in Nixon was NOT “25 months” as you would lie to people here about, but, instead, 4 months or less.

            Please try to not lie and gaslight people in this forum. That is frowned on.

        • bmaz says:

          I do not underestimate anything. But I do know how to litigate things, and understand perfectly how to use the best tools you have always. January 2017 is a beyond bogus reference date, Pelosi and the Dems did not retake the House Majority until January 2019.

          Sure, Pelosi is a brave and admirable woman. But not just a woman but a person, irrespective of sex. As a leader though since January 2019, she has been a feckless coward basing her actual sworn duty to protect and defend the Constitution on her own little political desires instead.

          Yes, sure, “Leaders have to be out front”. That ought to include being able to actually be “out in front” instead of being a coward refusing to do so because of cowardice and political expediency.

          • sixsmith says:

            (apologies if I’m not keeping my handles straight, I don’t recall commenting here before though I’ve been reading steadily for 18 months now). This is a point worth arguing. The politician does in fact understand something that the legal scholar does not, which is that the power of the constitution does not reside in its correct interpretation, but in its agreed interpretation. If you only need 15% of people to say “you are interpreting the constitution correctly,” you can impeach the president on 3 January 2019, but don’t come crying to me when your kindergarten teachers are all armed with AR-15s for your child’s safety.

            • bmaz says:

              Naw, it rests on correct interpretation. And there is a rich history to derive that from, starting with the Federalist Papers through to today.

              Also, welcome to Emptywheel comments.

  7. harpie says:

    o/t It feels like eons ago we were talking about this…but it was really only yesterday:
    https://twitter.com/KFILE/status/1221811040792535040
    7:03 AM – 27 Jan 2020

    Here’s Parnas and Giuliani at the Candelight dinner in DC for big donors in January 2017 pre-inauguration. They also attended a small fundraiser together in October 2016 in Florida at a mansion. […]

    • harpie says:

      As I said on another thread about an hour ago…Jackson Browne’s Before the Deluge keeps playing in my head.

  8. SteveL says:

    Interesting, isn’t it, that Cooper made the statement he did, which implicitly confirmed that the reports of the contents of the manuscript are accurate. He could have just said, as Bolton aide Tinsley did, that Bolton had only shared the draft with the WH.

    This suggests to me the desire to push the story forward.

  9. earlofhuntingdon says:

    The Philadelphia Inquirer’s Will Bunch (@will_bunch) has a delicious comment:

    “The last time this many Americans wanted to hear Bolton sing was 1992.”

    The guy in his picture has longer hair and no mustache, though, and I think his first name was Michael.

    • Federico says:

      That was the one who slept with Marla Maples while she was still married to Trump. Not the other, more evil one.

  10. P J Evans says:

    The RWNJs are claiming that the publishers are helping the Dems, or something to that effect. It’s like they don’t realize that there are not that many big publishers, the kind that can do seven-figure advances.

  11. harpie says:

    Remember when Roberts reprimanded both sides for incivility?
    That was an eon ago, when:
    https://www.theatlantic.com/ideas/archive/2020/01/utter-ridiculousness-us-senate/605566/

    Representative Jerry Nadler snipe[d] [not] the word I would have used] at the president’s defense team over the falsehoods the president’s defense lawyers had put forward, and Roberts then watched as the White House counsel, Pat Cipollone, sniped right back.

    Roberts then weighed in: “I think it is appropriate at this point for me to admonish both the House managers and the president’s counsel in equal terms,” he said, “to remember that they are addressing the world’s greatest deliberative body.”

    • cavenewt says:

      Am I the only one who blew [insert hot beverage of choice] out their nose upon reading that quote from Roberts?

  12. earlofhuntingdon says:

    As @lexibelc notes, a student at Philadelphia’s William Penn Charter School is being tested for the coronavirus.

    And @JamilSmith reminds us that the leading U.S. official for overseeing pandemic responses left the White House in 2018. John Bolton then promptly closed down his NSC’s global health security team.

    The Trump mantra seems to be if you don’t know what it is or can’t manage it, shut it down. Is it possible that what best protects Trump’s ego might not work for anyone else?

  13. drouse says:

    More bureaucratic warfare. This mostly for creating a paper trail to forestall retaliatory action. The overall tone that I got was that Bolton was laying out what would happen if regulations and official policy were followed while giving the impression that he had no real expectation that would actually happen.

  14. Mitch Neher says:

    If Trump has a legitimate national security reason for blocking Bolton’s testimony at Trump’s impeachment trail in the Senate, then wouldn’t Trump also have a legitimate national security reason for censoring Bolton’s book?

    Conversely, if Trump has no legitimate national security reason for censoring Bolton’s book, then how could Trump have any legitimate national security reason for blocking Bolton’s testimony at Trump’s impeachment trial in the Senate?

    I am not suggesting that Trump is under any obligation to be logically consistent. I’m suggesting only that the Constitution of the United States of America could be interpreted as though it were capable of being–perhaps even expected to be–logically consistent at least from time to time.

    Oh! I am so naïve, sometimes. Ha-ha!

  15. Matthew Harris says:

    One thing I am curious about is…why is this such big news?
    Right now on Google News, I can read USA Today calling it a “Bombshell”, CBS calling it “revelations”, and Bloomberg calling it a “Smoking Gun”

    As far as I can tell, there is nothing factually new in what Bolton said. This was the subject of the original whistleblower complaint, and many different government officials who were party to the call agreed in broad terms. Mulvaney even said as much during a press conference. And, most importantly, Trump’s defense team has not really factually debated that there was a request to investigate Biden in return for funding. There argument, as far as I understand it, is that “Abuse of Power is not a Crime”

    I mean, Bolton is an important witness, but what has he said that we don’t already know?

    • OldTulsaDude says:

      I would think it because his testimony would fall into the category of direct evidence rather than circumstantial evidence.

      • bmaz says:

        Legally, that does not matter in the slightest. Here is common language used in jury instructions:

        “There are two kinds of evidence: Direct and circumstantial. Direct evidence is testimony by a witness about what a witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, proof of one or more facts from which one can find another fact.

        You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.”

        • Vicks says:

          The problem as I see it, is Trump doesn’t need (or seem to have) a strong legal defense.
          All Trump’s team needs to do is sell a “good enough” story to Trump’s “followers” and the Republicans know they will be blessed with another day, week or month, to push their own agendas, line their own pockets and build their own power.

  16. di says:

    by what authority or legal precedence, can a president force/block a person from testifying if subpoenaed as long as there is not a national security issue (however that is defined)? what happens if you go forth? are you jailed and can then fight it?
    #CNN #News (youtube)
    White House has issued formal threat to John Bolton to keep him from publishing book

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