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The Bolton Indictment
The John Bolton indictment is a substantive document. If the claims about classification levels stand up, it is as substantive as the indictment against Trump (though with less sensitive documents and none of the obstruction).
For each of 8 charged documents (each was charged twice, once for transmission and once for retention) it describes Bolton sending the information to one of his family members via an AOL account that got hacked by Iran, then keeping it such that it was found when the FBI searched his house earlier this year.
Importantly, none of these are marked classified documents, like Trump’s stolen documents were. They are his excerpts. So there will be an enormous contest over the classification determinations, especially since Kash and John Ratcliffe were involved.
There are ten charged retained documents (that is, the same 8, plus two more). The latter two may be marked — they may be the old Iraq documents Bolton referred to.
The indictment describes someone — presumably from Iran — attempting to blackmail Bolton (at which point he told the FBI that he had been hacked).
It also quotes Bolton mocking Pete Hegseth for sharing classified information on Signal.
There are defenses to this case (including that Trump won’t prosecute Hegseth). But it is a solid case.
Update: Bolton is quoted referring to “diaries” throughout this indictment.
One of the FBI Agents on this case reportedly was involved in the Joe Biden case.
In that case, Biden fairly argued that DOJ was applying a different standard to him than DOJ had applied to Reagan in Iran-Contra.
It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.
Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.
Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916
We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]
But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.
By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.
Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.
Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.
Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]
I assume Bolton will make a similar argument.
Update: Because people are asking, here’s a really rough comparison of Bolton’s indictment with Trump’s.
Kash Patel and John Ratcliffe Predicate ANOTHER Investigation on Emails Stolen from Foreign Spies
NYT has a weird article — right wing propagandist Devlin Barrett is the first byline, with Maggie and Mike contributing as well — purporting to explain the John Bolton investigation. The first and fourth paragraphs claim that the investigation into Bolton is a “a long-running investigation” that “began to pick up momentum during the Biden administration,” claims that conflict with both the NYP’s seeded propaganda story on the search, which described that Kash Patel, “reopened the matter after he took over the FBI in February,” and a well-sourced CNN story, which described that, “the Justice Department reopen[ed] the years-old investigation.”
NYT bases its claim suggesting a continuous investigation on the collection from an adversarial spook service, during the Biden Administration, of emails purportedly sent by Bolton to family members.
The emails in question, according to the people, were sent by Mr. Bolton and included information that appeared to derive from classified documents he had seen while he was national security adviser. Mr. Bolton apparently sent the messages to people close to him who were helping him gather material that he would ultimately use in his 2020 memoir, “The Room Where It Happened.”
But way down in ¶12, NYT describes that John Ratcliffe briefed these emails to Kash Patel and between them they decided that these emails included classified information.
During Mr. Trump’s second term, John Ratcliffe, the C.I.A. director, briefed Kash Patel, the F.B.I. director, on the information that had been collected about Mr. Bolton’s emails. The officials believed that the material Mr. Bolton had transcribed into the unclassified and unsecured email contained classified information. Each intelligence agency makes its own determinations about what information is classified, so it is often up to the “originating” agency to decide whether particular pieces of information are classified, and how sensitive they are.
That is, Ratcliffe found something he could use to target Bolton and brought it to Kash. That’s what gave Kash the excuse to reopen the investigation.
This is about where credible DOJ reporters would start ringing alarm bells, because it makes this investigation not like other investigations into classified documents — NYT likens this investigation to the Hillary email investigation, Trump’s own theft of classified documents, and the investigation into Joe Biden — but the John Durham investigation, which Ratcliffe and Kash launched based off emails stolen from Russia which — we now know — were fabricated.
There are even indices in this story that suggest caution. The object of the search, NYT says, was to see whether Bolton possessed anything to corroborate the emails, precisely the approach Durham tried to take with Leonard Benardo.
One major reason for conducting the searches was to see if Mr. Bolton possessed material that matched or corroborated the intelligence agency material, which, if found, would indicate that the emails found in the possession of the foreign spy service were genuine, the people said.
Even according to NYT, the FBI still has no fucking clue whether these emails are genuine (and apparently didn’t take less intrusive means to check, such as a covert warrant to Bolton’s email provider).
Nevertheless, NYT invents explanations for why the material in question didn’t end up in Bolton’s book.
The material in the intercepted emails included information that Mr. Bolton did not ultimately use in his book. That may suggest that he had been told it remained classified during early reviews of his manuscript or that he ultimately decided to omit it, because of either its sensitivity or its importance.
In a story that admits the FBI doesn’t know whether these emails are genuine or not, they don’t consider another explanation: That Bolton may not have written the emails at all, just as Leonard Benardo didn’t write emails reporting on a devious Hillary Clinton plot to make something of Trump’s ties to Russia.
Look, we just learned that Ratcliffe and Patel participated in a 4-year effort to frame Hillary Clinton based off emails fabricated by Russian spies. Can you please not be so horny to normalize all this that you ignore that the fact pattern here is precisely the same?
Two Maryland Men and a Michigan Woman: A Topology Trump’s Witch Hunts
Back on Friday, before Women’s World Cup Rugby distracted me for a long weekend, I started this post with the claim, “As of this moment, both Kilmar Abrego and John Bolton are free men.”
That claim, of course, has been overtaken by events.
Friday started with a search of Bolton’s Maryland home, reportedly in a renewed investigation into the mishandling of classified information that went into his book (see Ben Wittes’ first hand account here). In an interview taped (and partially released that day), JD Vance revealed not only that he was part of the investigative decisions targeting Bolton, but effectively admitted this was a fishing expedition, basically a search of the Trump critic’s home to find out if they could target him with a crime.
VICE PRES. JD VANCE:
We’re in the very early stages of an ongoing investigation into John Bolton. I will say we’re going to let that investigation proceed. What I can tell you is that, unlike the Biden DOJ and the Biden FBI, our law enforcement agencies are going to be driven by law and not by politics. And so if we think that Ambassador Bolton has committed a crime, of course, eventually prosecutions will come. But as you know, Kristen, this is all part of gathering evidence, trying to understand something that we’re worried about. And, of course, I’ll let the FBI comment on the next stage of the investigation.
KRISTEN WELKER:
What’s at the root of this? Is this about classified documents?
VICE PRES. JD VANCE:
Well, again, I’ll let the FBI speak to that. Classified documents are certainly part of it. But I think that there’s a broad concern about, about Ambassador Bolton. They’re going to look into it. And like I said, if there’s no crime here, we’re not going to prosecute it. If there is a crime here, of course, Ambassador Bolton will get his day in court. That’s how it should be. But again, our focus here is on did he break the law? Did he commit crimes against the American people? If so, then he deserves to be prosecuted.
This was heavy handed dick-wagging, the White House making it clear they were personally directing searches of Trump’s defectors.
Meanwhile, Abrego was free on Friday when I started this post. He was released from pre-trial detention in Tennessee, only to be detained at an ICE check-in on Monday. Judge Paula Xinis has ordered the government not to deport him — to Uganda — until she can review the evidence of retaliation for his decision to contest first his illegal deportation and then the Tennessee charges against him. He has formally requested to be deported to Costa Rica.
Abrego’s very good attorney, Sean Hecker, described how much courage it took Abrego to fight this fight:
One of Mr. Abrego Garcia’s lawyers, Sean Hecker, said after the detention that the threat of deportation came even as Costa Rica was willing to take him in as a refugee. “The government’s campaign of retribution continues because Mr. Abrego refuses to be coerced into pleading guilty to a case that should never have been brought,” he said.
After the Bolton search, a number of people claimed it represented some new low in Trump’s efforts to demonize his opposition. Such claims always depended on misrepresenting the Durham investigation and ignoring the way Bill Barr’s DOJ framed Joe Biden. But after the confirmation that Durham chased Russian disinformation for two more years after concluding the underlying pretext for his investigation was fabricated, such assertions border on pathology.
That said, the Kilmar Abrego treatment is new; in the first Trump term, after all, DOJ would simply reverse wrongful deportations. So, too, is Trump’s claimed firing of Fed Governor Lisa Cook after Bill Pulte snooped in her mortgage records and conjured up a mortgage fraud referral. This is an Administration pushing the means by which it attempts to criminalize its opponents — but that overreach may (and in Abrego’s case, arguably already has) backfire.
I want to write a series of posts on how and what he is doing.
In this post, I will lay out a kind of topology of what he is doing — and how various executive authorities overlap in them. These attempts are efforts to push the bounds of criminal prosecution, sometimes by forgoing the actual prosecution, sometimes by fabricating evidence.
In a second post, I will discuss the players. It matters that Todd Blanche has been named in two separate vindictive prosecution filings, particularly given the ruling that Alina Habba was not properly acting as US Attorney during the period when DOJ claimed not to have body cameras for two of the key witnesses in the LaMonica McIver prosecution. It matters that Kash Patel, who harbored a grudge against Bolton going back years and included him in his enemies list, gleefully tweeted as the search of Bolton’s home began. It even matters that Pulte appears to be trawling the financial records of Trump’s enemies, even while Trump’s other policies harm the housing industry.
In a third post, I’ll consider outcomes. Trump is doing this for more than just his desire to attack his enemies. But it’s not clear whether, particularly after purging the Department of Justice of competent prosecutors, he can achieve his objectives. As I’ve noted in the past, Trump is trying to satisfy a mob of rabid conspiracy theorists. While I believe the Hunter Biden prosecution raised real concerns, in general, the criminal justice system still adheres to basic laws of gravity. And those rules may thwart Trump’s effort to redefine “justice.”
In a fourth post, I’ll review John Roberts’ opinion in Trump v. US. The opinion did more than immunize Trump’s own crimes; it created conflicts that will soon land before SCOTUS.
Immigration
It is my belief that, on top of being a raging white nationalist, Stephen Miller identified immigration law as an area where the expansiveness of Presidential authority provides ready tools for fascism. After all, Miller plotted for years to use the Alien Enemies Act as a way to send hundreds of men to a concentration camp with no due process, an effort that was thwarted (for now, at least) by the Continuing Resolution that kept government open over the weekend of March 14, Chief Judge James Boasberg’s willingness to work while on vacation, and key disclosures about the lies on which the effort was based.
From that expansive authority, DOJ has explicitly tried to criminalize support for migrants. Last week, for example, Acting Los Angeles US Attorney Bill Essayli crowed that he convinced a grand jury to indict Adrian Andrew Martinez, the kid whom CBP assaulted after he called out their detention of an old guy in his Walmart parking lot. While his indictment (from nearly a week ago) is not yet docketed, the complaint against him claims Martinez was blocking the CBP vehicles. Before charging Martinez, DOJ attempted to subpoena his contacts with media, as if the media will be implicated in this conspiracy.
The charge against Martinez — conspiracy to impede a federal officer — is the same DOJ has used against David Huerta, the President of CA’s SEIU, who also was assaulted at a protest. That case keeps getting continued, which could reflect that it is one of the cases that prosecutors are having a hard time getting a grand jury to indict, or could indicate that politicized prosecutors are using the initial charge to rifle through SEIU coffers to try to substantiate something larger.
There are four other cases where Trump’s DOJ has attempted to criminalize Democrats with a crime for countering DHS’s dragnet.
I suspect that Brad Lander, who was violently detained days before the NYC Mayoral Primary, would have been charged if not for Emil Bove’s prior statements about how even prosecuting Eric Adams was election interference.
Trump’s other key targets — Milwaukee Judge Hannah Dugan, Newark Mayor Ras Baraka, and Newark Congresswoman LaMonica McIver — all did have official purpose to do what Trump is trying to criminalize. But on top of that official purpose, as all three cases moved to discovery, the accused caught the government in apparent false claims. Dugan, for example, claims that DOJ falsely accused her of sending the undocumented man before her down a stairwell (the more damning alleged facts in the case against Judge Shelly Joseph, whom Trump charged in his first term).
2 On this small detail, Judge Dugan follows the government on one of its forays outside the scope of the indictment. It is undisputed—and indisputable, given the video evidence—that E.F.R. entered the public hallway about 15 feet to the right of the usual courtroom door, where two agents watched him emerge. So Judge Dugan never “optimized” the man’s avoidance of federal agents. Contra Dkt. 46 at 28. On the government’s own witness statements, she certainly never directed E.F.R. “to access a stairwell.” Dkt. 46 at 21. To the contrary, she pointed him to the public hallway. None of this is dispositive now, one way or the other, especially because the magistrate judge found these acts part of a judge’s job, Dkt. 43 at 30, and the government does not dispute that finding. But it begs the question why the government overstates or misstates its evidence.
In the Baraka and McIver case, the sworn affidavit of Ricky Patel in the Baraka case does not match the alleged facts in the McIver indictment — and that’s before you get into the missing Body Cam footage in McIver’s case.
Which is to say that Trump’s DOJ is having to make shit up in their quest to criminalize oversight for immigration enforcement.
Revenge
The criminal case against Ksenia Petrova — the Harvard researcher first detained, then arrested, for bringing frog samples into the country — is unclear. Speedy Trial should have expired on that case.
With Abrego, of course, is it much more clear. Rather than move Abrego back to the US and initiate a deportation procedure to a third country, they instead immunized and freed people who’ve committed the crime they’re alleging against Abrego. Two judges reviewed the evidence and both found it so flimsy that it didn’t merit detention. Then, after he accused the government of classic vindictive prosecution — the filing of charges because he availed himself of his rights under the Constitution, they tried to coerce him to plead guilty in order to win deportation to Costa Rica instead of Uganda.
That’s why the stakes on Abrego’s case are so high. He is challenging the government’s bid to ratchet up legal jeopardy when anyone fights for their rights. While so many others lay low in hopes they’ll avoid further targeting, Abrego — perhaps out of necessity — has pushed to vindicate rule of law.
Data dives
Meanwhile the head of Fannie and Freddie, Bill Pulte, appears to be trawling through mortgage records to find dodgy paperwork to refer to Trump’s Director of Weaponization, Eagle Ed Martin. Thus far, Pulte has referred Tish James, Adam Schiff, Lisa Cook, and two more unnamed people.
As Abbe Lowell noted in a latter to Martin regarding his stalking of Attorney General James, somehow Pulte missed that Ken Paxton has one more “primary residence” than Pulte claims that his Dem targets do.
This conclusion is supported by your other appointed title, Special Attorney. Whileprofessing to be acting to address “mortgage fraud,” Attorney General Bondi and you have statedthat your targets are Ms. James (Democratic Attorney General of New York) and Adam Schiff(Democratic Senator of California). Notably, absent from your mandate is Kenneth Paxton(Republican Attorney General of Texas). Given that the same news reports raising questions aboutMs. James and Mr. Schiff have reported that, somehow, Mr. Paxton has three different properties that he claims to be his “primary residence,”3 it seems to indicate your title ought really be,“Special Assistant for Mortgage Fraud [Alleged Against Democrats Adverse to President Trump].”
3 Texas Attorney General Ken Paxton, a Senate hopeful, claimed 3 homes as his primary residence,Associated Press (July 24, 2025), https://apnews.com/article/paxton-mortgages-trump-primary-residence-homestead-deduction-bd259b6bd122afcaf4f11eac5a3a152e.
One thing that’s missing from all of this, however, is that Ed Martin is the one receiving these referrals, not a competent prosecutor (note, too, that the metadata of an earlier letter Martin sent Lowell showed that Jared Wise, an FBI agent who incited January 6 rioters to kill cops, was the author of the letter).
These are men who stated their job was to name and shame, not prosecute.
Ed Martin described himself at a press conference as the “captain” of the group that is investigating prosecutors who launched past investigations into Trump and his allies.
“There are some really bad actors, some people that did some really bad things to the American people. And if they can be charged, we’ll charge them. But if they can’t be charged, we will name them,” Martin said. “And we will name them, and in a culture that respects shame, they should be people that are ashamed. And that’s a fact. That’s the way things work. And so that’s, that’s how I believe the job operates.”
[snip]
“I will say that the prosecutor’s role, and at this moment in our history, is to make clear what the truth is and to get that out,” Martin said. “It can’t be that the system is stifling the truth from coming out because of some procedure.”
Martin said he would have a “more public-facing” role as director of the Weaponization Working Group.“When I was asked to switch over here, I was told, you know, this job, you need to be out more and talk about what’s going on. So I think we’ll be a little bit more outward facing in terms of talking about what’s happening,” Martin said.
Trump has now claimed to have fired Cook — in spite of a recent Supreme Court ruling that explicitly said the President can only fire Governors for cause, even though Pulte chose to share the referral with someone who brags that he is not conducting himself according to DOJ guidelines.
The extralegal nature of this is of particular concern. In a matter of ten days, a partisan official offered up a Black woman to target, and Trump responded by firing her without the due process he was afforded.
And I expect that Pulte is just the tip of what will soon become an iceberg. Trump has done completely unprecedented consolidation of government-held data (indeed, there’s a new allegation that DOGE is mishandling Social Security data). So we should expect more such attempts to criminalize Trump’s adversaries as his minions data mine more data.
Counter-investigation
Meanwhile, Trump is trying to find a way to claim those who investigated him are themselves criminals.
To be sure, he has already gutted DOJ and FBI of experience by purging those who worked on Trump’s cases (which by purging the really talented prosecutors, might make it harder to succeed with other edge cases DOJ is pursuing).
But Eagle Ed Martin claims to be search for a way to prosecute Tish James. There are hints that DOJ is trying to pursue people like Liz Cheney.
And rather than concerning himself with Trump’s coddling of Russian and China, Tom Cotton referred Jack Smith to Office of Special Counsel for investigation. According to a NYT report, OSC has not contacted Smith or his team at all (suggesting that under Trade Rep Jamieson Greer, the office is not working according to normal protocol). This may be just another attempt to document dive — beyond what Trump himself attempted — to try to invent conflicts where none exists.
Conspiracy theories
Then there’s the at least third attempt to do what John Durham spent four years attempting to do, but failed — to find some way to claim that the counterintelligence and criminal investigation of Trump in 2016 was itself criminal.
The latest incarnation stems from Tulsi Gabbard’s adoption of an obvious conspiracy theory, one based on provably false claims about the shift in the intelligence review in 2016, the content of the Intelligence Community Assessment, and John Clapper’s view of the Steele dossier briefing to Trump.
Trump is attempting, with shoddier prosecutors, what Durham went to lengths he himself said were criminal himself.
Old news
And then finally there’s the old news — the attempt to mine from prosecution declinations — of Jim Comey under Bill Barr in 2020 and of John Bolton under Merrick Garland sometime in the last four years. Both these investigations attempt to criminalize the men for the same thing Trump was himself charged with: mishandling classified information. They aspire to do so with declination decisions from past prosecutors.
Security clearance
The second area in which Trump is exploiting expansive Executive authority is in security clearances. He started his term by stripping security clearance from any of the 51 spooks who truthfully said that the Hunter Biden hard drive packaged as a laptop had the hallmarks of a Russian influence operation. A move to strip the security clearance of anyone in the Big Law firms he targeted is the one aspect of those Executive Orders that might survive on appeal (Trump has appealed all those decisions, on delayed basis). There were select cases of targeting — perhaps most importantly, Mark Zaid, since Zaid is one of the defense attorneys with most experience adjudicating clearance issues. And then in recent weeks, Tulsi started stripping the clearance of top spies based on her conspiracy theories.
The expansiveness of Presidential power on this issue will matter in criminal cases insofar as it prevents someone like John Bolton from enjoining the witch hunt into him.
Previous posts
May 27: The Law, Conspiracism, and Gravity
June 12: Pam Bondi’s Four Political Prosecutions
August 16: LaMonica McIver Prepares to Hoist Todd Blanche with His Own Petard
Dockets
First Kilmar Abrego civil docket (MD)
Second Kilmar Abrego civil docket (MD)
Kilmar Abrego criminal docket (MDTN)
Ksenia Petrova criminal docket
John Bolton and the MIHOP Gambit
[NB: check the byline, thanks. /~Rayne]
Let me throw a minority report opinion at you, based on this video, first released on YouTube two days before the FBI served a dawn warrant on John Bolton’s home:
Bolton’s general opinion about Trump’s transactional approach to international relations certainly isn’t new.
But Bolton spent more than 12 minutes airing out his opinions on Trump’s handling of Russia, Ukraine, India-Pakistan, and tariffs.
He also shared his opinion that Trump’s so-called “list of accomplishments” is Trump trying to accrue to obtain a Nobel Peace Prize.
Trump’s handling of the India-Pakistan conflict in May earned an ego-fluffing nomination for a Nobel from Pakistan in June.
US support of Israel’s bombing of Iran in July, supported by Bolton, makes the nomination a joke as does continuing US support of Netanyahu’s genocidal handling of Gaza.
These conflicting approaches to international relations may pose leverage for Putin to pressure Trump on Ukraine, using Trump’s narcissistic desire for a Nobel Peace Prize — a prize former president Jimmy Carter, vice president Al Gore, and the first Black American president Barack Obama have been awarded. Bolton doesn’t make this point but he does say Putin is manipulating Trump.
Bolton’s criticism of Trump isn’t limited to the video above, or his remarks in his 2020 book, In The Room Where It Happened. Bolton has been interviewed by many outlets here and abroad during which his criticisms are laid out and only growing as Trump continues to flog his erratic and transactional foreign policies. Here are a sampling of interviews with Bolton:
John Bolton, whom Trump described as “a very dumb guy”, is worried about Taiwan
60 Minutes Australia, May 4, 2025
Putin Will ‘Take Advantage’ Of Trump Meeting: Fmr. Nat’l. Security Adviser John Bolton
NewsNation via The Hill, August 8, 2025
Trump is in rush to get deal done: John Bolton on Russia-Ukraine talks
Elizabeth Vargas Reports, NewsNation, August 18, 2025
‘Sanctions Don’t Prohibit What India Did’: Ex-Trump NSA John Bolton On U.S. Tariffs On India
Hindustan Times, August 21, 2025
In this excerpt from the Hindustan Times interview above:
10:34 [MATTOO] You know Ambassador Bolton, if I could bring you back to that question of trust uh moving forward in uh the partnership with America. Lots of commentators over the years in India have been skeptical about the relationship with the United States. They’re saying that look this is a country that fundamentally has a lot more leverage than we do. That’s the question you know do you have the cards and the the sense that there is in India is that yes America is willing now to use its leverage in a way that is coercive, is extremely transactional, uh, and is in some ways brutal.
And you’ve seen President Trump speak very appre, in a very appreciatory tone about tariffs, saying that we’re willing to use it time and again for our foreign policy instruments. There’s a sense that defense technology could be something that America uses as well. And for example, our fighter jet uh something like General Electric fighter jet engines which India is co-developing with the United States to use for our fighter jets is something that India took a significant leap of trust in the United States to develop that partnership uh after years and years as you might be familiar with of suspicion about Washington.
What do you think what has happened over the last couple of weeks does to trust in the relationship? And if you’re speaking to an Indian audience as you are now, how do you pitch to them that the American relationship is one that they should still rely on, should still work on, should still continue to develop?
11:45 [BOLTON] Well, unfortunately, what Trump has done on the tariffs generally uh is destroy uh decades of effort with India, but with a lot of other countries as well uh to build up good faith and trust and reliance on the United States and uh it will take time to repair that. That’s that’s the unfortunate reality. But but here’s where I think it’s important to understand that Trump is aberrational. I don’t know anybody else uh Republican or Democrat who ran for president, let’s just say in 2024, who if elected would behave anything like this. Trump’s doing a lot of things domestically in the United States that are cause for great concern for us as well. And I don’t know any other candidate from 2024 who would do that.
12:30 [BOLTON] Uh, Trump doesn’t have a philosophy. Uh so I think ultimately there’s no legacy for him to leave to his successors, whoever they might be. Uh and I believe that the uh the uh the the force of his personality inhibits a lot of people from speaking up, but that doesn’t mean they agree with what he’s doing. That’s very unfortunate in my view.
12:52 [BOLTON] But I think the uh the the the true strategic sense here uh particularly for a country like India with its assets and capabilities and uh and threats that it faces right on its own border uh is is just to take a deep breath and remember that the world’s going to last longer than the next three and a half years. And uh it’s not pleasant to go through this. I’m not not going to try and persuade anybody of that. But uh but our objective should be to keep the damage to the relationship uh at a minimum uh and then to think about how to repair it as quickly as we can thereafter because I think that when Trump walks off the stage uh he will take almost uh the bulk of this history with him.
(emphasis mine)
Bolton calls Trump “aberrational” or an “aberration,” but this is not the only time Bolton has done so. He did so in June 2020 when interviewed by ABC News, in an interview for NPR in August 2023, in March this year in a tweet from his own Xitter account, and in the India Today video (11:52) featured above.
While criticizing Trump and his foreign policy (or lack thereof), Bolton makes a point of calling Trump an aberration so often through so many media outlets that it seems like a campaign slogan.
In the Hindustan Times Bolton also noted Trump’s repression of free speech critical of his geopolitics. Bolton had to know that he would face more aggressive tactics by the Trump administration to squelch his criticism.
But what if this was the point? To egg Trump on with repeated critical comments Bolton knew from experience would hit a nerve with Trump, to goad him into attacking Bolton?
What if Bolton made it — the investigation into him including the raid on his home yesterday — happen on purpose? In other words, a MIHOP gambit?
If so, what are the next moves by Bolton and Trump?
~ ~ ~
During the February 5, 2020 hearing before the House Committee on the Judiciary, there were a couple questions asked of then-FBI Director Chris Wray mentioning John Bolton by name. First, committee chair Rep. Jerry Nadler (D, NY-12):
Chair Nadler. Okay. Now, recent reporting suggests that the
President plans to seek payback against those individuals he
believes crossed him during the impeachment proceedings. I am
sorry to have to ask. Has the President, the Attorney General,
or any other Administration official asked the FBI to open an
investigation into Joe Biden, Hunter Biden, John Bolton, or any
Member of Congress?
Mr. Wray. Mr. Chair, I have assured the Congress and I can
assure the Congress today that the FBI will only open
investigations based on the facts, law, and proper predication.
Chair Nadler. I understand that, and I assume that it is
correct that neither the President, the Attorney General, or
any other Administration official has asked the FBI to open
improper political investigations?
Mr. Wray. No one has asked me to open an investigation
based on anything other than the facts, law, and proper
predication.
Later in the hearing, Rep. Joe Neguse (D, CO-02):
I want to give you an opportunity to clarify earlier part
of your testimony. The Chair had asked a question, and I think
there was some confusion around your answer. So, with respect
to a recent article that alleges that the Administration may be
attempting to initiate political investigations or politically
motivated investigations, rather, into their political
opponents, has the President, the Attorney General, or any
Member of the Administration asked you to initiate an
investigation into John Bolton?
I am not asking whether or not that request would be
improper or proper or whether or not if such a request was
made, if you have initiated such an investigation. I am simply
asking if they have asked you to do so.
Mr. Wray. I understand why you’re asking the question, and
I would just tell you my commitment to doing things by the book
includes not talking about whether any particular investigation
does or does not exist. You shouldn’t read anything into that.
That’s not a hint that anything is happening. It’s just I don’t
think that’s a question that I can responsibly answer if I’m
going to be faithful to my commitment to doing things by the
book.
Mr. Neguse. Well, we appreciate–
Mr. Wray. I will tell you, as I said to the Chair–I will
tell you, as I said to the Chair, that no one has asked me to
open any investigation on anything that’s not consistent with
the facts, the law, and proper predication.
Mr. Neguse. I would just say, Director Wray, with all
respect, as you could probably imagine, these questions, both
the question the Chair posed and the question that I posed, are
not academic or esoteric for us. Seven months ago, Special
Counsel Mueller sat in the same chair that you are in, and we
all know now, that the very next day, the President had his
infamous call with the President of Ukraine, in which he sought
foreign interference in our elections. Of course, as you know,
in just a few hours, the Senate will render judgment in the
impeachment trial of the President.
So, one can ask reasonable questions as we read these
reports that we just over the course of the last few days as to
potentially what other actions this Administration might take.
So, again, I appreciate your earlier answer, and I want to move
on to a different topic, which is election interference.
There was an article just a few weeks ago in the New York
Times, and I would ask for unanimous consent to enter it into
the record. “ `Chaos Is the Point’: Russian Hackers and Trolls
Grow Stealthier in 2020,” by Matthew Rosenberg, Nicole
Perlroth, and David Sanger of the New York Times.
[The information follows:]MR. NEGUSE FOR THE RECORD
==========================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]Mr. Neguse. In the article, there are a couple of
references to new developments in terms of the way in which
Russian actors, the intelligence apparatus is engaging in
disinformation in attempted interference in our elections. I
wonder if you could comment about two in particular? I will
just quote.“One of the two Russian intelligence units that hacked
into Democrats in 2016, `Fancy Bear,’ has shifted some
of its work to servers based in the United States in an
apparent attempt to thwart the NSA, which is limited to
operating abroad. Also, the trolls at the Internet
Research Agency are trying to exploit a hole in
Facebook’s ban on foreigners buying political ads,
paying American users to hand over personal pages and
setting up offshore bank accounts to cover their
financial tracks.”I wonder if you could expand in greater detail on both of
those two issues and how the FBI, I guess, is addressing both
of those developments.
Mr. Wray. So, certainly, I appreciate the interest. I think
I’d have to be pretty careful about how much detail I could
provide in an open hearing. I would say that we believe–we
assessed that the Russians continue to engage in malign foreign
influence efforts of the sort that I was describing before–
fake personas, trolls, bots, state-sponsored media, the whole
gamut in the bag of tricks.
We also assessed that just like any sophisticated actor,
that they continue to refine their approach. We saw that from
2016-2018. We’ve seen it from 2018 moving forward. Happily,
we’re refining our approach, too, and we’re trying to stay
ahead of it.
(emphasis mine)
In 2020, during Trump’s first administration, neither the Trump DOJ nor the Democratic Party-led House launched investigations into John Bolton as Trump’s NSA, and in the FBI’s case, did not launch an investigation based on politics into Bolton.
Trump has now overseen a massive purge of intelligence and security personnel, many of whom share one or two things in common: they were involved in investigations in which Trump was a central figure, or they were involved in investigations related to Russia.
How will the Trump administration justify investigating Bolton now when his first administration didn’t appear to have done so? What’s Team Trump’s next move? What about Bolton’s?
![[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]](https://www.emptywheel.net/wp-content/uploads/2017/08/NationalSecurityAgency_HQ-FortMeadeMD_Wikimedia.jpg)
Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated
DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.
The hiring process
As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.
In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.
After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.
The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.
As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.
After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.
The Eisenberg and Cipollone calls
The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.
Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.
When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”
The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.
That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.
Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.
I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.
Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.
Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.
In the days after January 6, Ellis was discovered to have two security violations
After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.
In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.
An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.
[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.
In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)
On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:
And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.
Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.
Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.
DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.
The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.
The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.
It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.
That said, that seems reason enough to chase down why he did those things.
John Bolton Versus Navy Versus Egan
John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.
This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors. They include:
- Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public. Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.
- The decision to classify material here appears to be highly irregular. The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information. A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review. It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information. At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.
- The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one. Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.
Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.'”
Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.
However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.
The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.
Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.
And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.
Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.
What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.
Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:
- On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112
- On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114
- On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116
- As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118
- At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120
- During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”
- After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122
- When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123
- Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.
- On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126
- On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127
It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.
While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.
And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).
Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.
Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.
Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.
What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.
In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.
So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.
A Tale of Two National Security Advisors
As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.
I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.
That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.
Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.
The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.
35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.
36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.
37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.
38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F
They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).
Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.
They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.
Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.
Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.
Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.
Whether they will prosecute or not is unclear. But these filings make it far easier to do so.
The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.
This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.
The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.
Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.
Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.
But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.
To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.
But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.
The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.
The Whack-a-Mole Cover Story: Bill Barr’s Knowing Complicity Moved a Month Earlier
Attentive readers of yesterday’s NYT Bolton story have noted that Bolton says that by August, Trump’s demand in the quid pro quo was not just the announcement of an investigation, but “all materials they had about the Russia Investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”
In his August 2019 discussion with Mr. Bolton, the president appeared focused on the theories Mr. Giuliani had shared with him, replying to Mr. Bolton’s question that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.
That is, in August of last year, Trump was extorting Ukraine to obtain materials about 2016.
Some have suggested this is new news. But it’s not. It came up at Mick Mulvaney’s October 17, 2019 press conference. As he told it, the hold was primarily because of corruption and to press the rest of Europe to provide their fair share of funding for Ukraine. Mulvaney made a statement that — given that we now know DOD reviewed how much Europe provided and concluded they were providing more than the US — is fairly breathtaking in retrospect. Mulvaney gets away with this by claiming it’s just about lethal aid.
So we actually looked at that, during that time, before — when we cut the money off, before the money actually flowed, because the money flowed by the end of the fiscal year — we actually did an analysis of what other countries were doing in terms of supporting Ukraine. And what we found out was that — and I can’t remember if it’s zero or near zero dollars from any European countries for lethal aid. And you’ve heard the President say this: that we give them tanks and other countries give them pillows. That’s absolutely right, that the — as vocal as the Europeans are about supporting Ukraine, they are really, really stingy when it comes to lethal aid. And they weren’t helping Ukraine, and then still to this day are not.
From those two excuses — corruption and European support — Mulvaney then adds, as what he probably intends to be a throwaway comment, that part of this was investigating the DNC server, all the while trying to pretend that an investigation into the DNC server (he can never seem to label this the Crowdstrike conspiracy theory) pertains to corruption.
Did he also mention to me in pass the corruption related to the DNC server? Absolutely. No question about that. But that’s it. And that’s why we held up the money.
Now, there was a report —
Q So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?
MR. MULVANEY: The look back to what happened in 2016 —
Q The investigation into Democrats.
MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation. And that is absolutely appropriate.
[snip]
Did he also mention to me in pass the corruption related to the DNC server? Absolutely. No question about that. But that’s it. And that’s why we held up the money.
Now, there was a report —
Q So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?
MR. MULVANEY: The look back to what happened in 2016 —
Q The investigation into Democrats.
MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation. And that is absolutely appropriate.
Someone latches on to Mulvaney’s admission that Trump was demanding an investigation into his opponents, and raises “the Bidens.” Someone else notes that even if you’re just talking about the DNC, it still means Trump engaged in a quid pro quo to investigate his prospective opponents, since the DNC is also involved in 2020.
Q Mr. Mulvaney, what about the Bidens, though, Mr. Mulvaney? Did that come into consideration when that money was held up?
MR. MULVANEY: I’m sorry, I don’t know your name, but he’s being very rude. So go ahead and ask your question.
Q Just to clarify, and just to follow up on that question: So, when you’re saying that politics is going to be involved —
MR. MULVANEY: Yeah.
Q — the question here is not just about political decisions about how you want to run the government. This is about investigating political opponents. Are you saying that —
MR. MULVANEY: No. The DNC — the DNC server —
[snip]
Q Are you saying that it’s okay for the U.S. government to hold up aid and require a foreign government to investigate political opponents of the President?
MR. MULVANEY: Now, you’re talking about looking forward to the next election. We’re talking —
Q Even the DNC. The DNC is still involved in this next election. Is that not correct?
Mulvaney starts to panic, and to get out of that panic, invokes the Durham investigation. To defer from 2020, Mulvaney says Trump was just obtaining information for an ongoing investigation.
MR. MULVANEY: So, wait a second. So there’s —
Q So are you saying —
MR. MULVANEY: Hold on a second. No, let me ask you —
Q But you’re asking to investigate the DNC, right?
MR. MULVANEY: So, let’s look at this —
Q Is the DNC political opponents of the President?
MR. MULVANEY: There’s an ongoing — there’s an ongoing investigation by our Department of Justice into the 2016 election. I can’t remember that person’s name.
Q Durham.
MR. MULVANEY: Durham. Durham, okay? That’s an ongoing investigation, right? So you’re saying the President of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing? That’s just bizarre to me that you would think that you can’t do that.
In other words, in Mulvaney’s presser, he excused the political aspect of Trump’s quid pro quo by claiming the President was pressing Ukraine to cooperate in the Durham investigation. He claimed that this wasn’t about Biden but instead about 2016.
Of course, that had to have caused all sorts of heartache over at DOJ, because they had been saying for almost a month that Bill Barr had no clue about any of this and here Mulvaney was saying that the quid pro quo was about the investigation Barr set up and was micromanaging.
After DOJ pushed back, the White House adopted the line that this was about Burisma’s corruption.
To be sure, the impeachment witnesses didn’t always support that. Kurt Volker, for example, invented a story that when he pushed Ukraine to investigate Burisma, he meant they should investigate the corrupt company, not Biden and that the request to investigate 2016. He discounted the request for an investigation into 2016 by suggesting Ukrianians might be trying to buy influence.
SCHIFF: Ambassador, let me also ask you about the allegations against Joe Biden, because that has been a continuing refrain from some of my colleagues, as well. Why was it you found the allegations against Joe Biden, related to his son or Burisma, not to be believed?
VOLKER: Simply because I’ve known Vice President — former Vice President Biden for a long time, I know how he respects his duties of higher office and it’s just not credible to me that a Vice President of the United States is going to do anything other than act as how he sees best for the national interest.
[snip]
SCHIFF: I take it since you say that — you acknowledge that asking for an investigation of the Bidens would have been unacceptable and objectionable, that had the President asked you to get Ukraine to investigate the Bidens, you would have told him so?
VOLKER: I would have objected to that. Yes, sir.
SCHIFF: Mr. Goldman?
GOLDMAN: Thank you, Mr. Chairman. Just one follow up on that, Ambassador Volker. When — when you say thread the needle, you’re — you mean that you understood the relationship between Vice President Biden’s son on — and Burisma but you were trying to separate the two of them in your mind? Is that right?
VOLKER: Well I believe that they were separate, that — and I — this references the conversation I had with Mr. Giuliani as well, where I think the allegations against Vice President Biden are self-serving and not credible.
A separate question is whether it is appropriate for Ukraine to investigate possible corruption of Ukrainians that may have tried to corrupt things or buy influence. To me, they are very different things. As I said, I think the former is unacceptable, I think the latter in this case is …
[snip]
GOLDMAN: Now he was insisting from a public commitment from President Zelensky to do these investigations, correct?
VOLKER: Now, what do we mean by these investigations?
GOLDMAN: Burisma and the 2016 election.
VOLKER: Burisma and 2016, yes.
GOLDMAN: And, at the time that you were engaged in coordinating for this statement, did you find it unusual that there was such an emphasis on a public statement from President Zelensky to carry out the investigations that the president was seeking?
VOLKER: I didn’t find it that unusual. I think when you’re dealing with a situation where, I believe the president was highly skeptical about President Zelensky being committed to really changing Ukraine after this entirely negative view of the country, that he would want to hear something more from President Zelensky to be convinced that — OK, I’ll give this guy a chance.
GOLDMAN: And he — perhaps he also wanted a public statement because it would lock President Zelensky in to do these investigations that he thought might benefit him?
VOLKER: Well again, we’re — when we say these investigations what I understood us to be talking about was Ukrainian corruption.
GOLDMAN: Well, what we’re talking about is Burisma and the 2016 election, let’s just —
VOLKER: Correct, correct — yes, right.
[snip]
VOLKER: I do remember having seen some of the testimony of Mr. Kent, a conversation in which he had asked me about the conspiracy theories that were out there in Ukraine. I don’t remember what the date of this conversation was.
And my view was, well, if there are things like that, then why not investigate them? I don’t believe that there’s anything to them. If there is — 2016 election interference is what I was thinking of — we would want to know about that. But I didn’t really there was — believe there was anything there to begin with.
It was a thin story, but necessary to explain why Volker did something he knew to be utterly corrupt, and then got caught doing it. While not explicitly, he was endorsing the possibility that Ukraine might have had a corrupt role in 2016.
All that said, Bolton’s certainty that Trump was also asking for Ukraine to provide the US with information on 2016 raises the import of this detail: Bolton claims (and DOJ has been releasing conflicting comments since yesterday) that he warned Bill Barr about this shadow Ukraine policy in July.
Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.
After releasing an initial denial yesterday, today DOJ has issued a non-denial confirmation.
A Justice Department official familiar with the matter said Mr. Bolton did call Mr. Barr to express concerns about Mr. Giuliani and his shadow foreign policy in Ukraine. It wasn’t clear what, if anything, the attorney general did with that information.
Department spokeswoman Kerri Kupec denied that Mr. Barr learned of the Ukraine call from Mr. Bolton. The department has repeatedly said he learned about it in mid-August.
We don’t know for sure, but the difference in timeline may be utterly critical to Barr’s implication in this conspiracy. For starters, Bolton’s warning to Barr undoubtedly came before Barr stopped into a meeting in September with Rudy Giuliani about the Venezuelan who happened to be funding some of the Ukrainian grift. Bolton’s warning may make DOJ’s efforts to bracket off the Parnas and Fruman investigation, which Barr undoubtedly knew about, from the whistleblower complaint far more suspect.
Most importantly, we don’t know when multiple Ukrainians offered John Durham dirt (much less who they are). But if happened between Bolton’s warning in July and when Barr has previously claimed to have learned that Trump told Zelensky that he, Bill Barr, would happily receive the dirt he was extorting, it would make Durham’s acceptance of that dirt part of the conspiracy itself. That is, it would make Barr’s efforts to use DOJ to investigate Trump’s opponents a key part of both a conspiracy being investigated in SDNY, from which Barr has irresponsibly not recused, as well as an impeachment investigation, from which Barr has also not recused.
Bolton’s certainty that Trump wanted Ukraine to provide materials for a US investigation into Trump’s foes is not at all new. But the fact that Barr should have known he was part of this conspiracy a month earlier than he had previously admitted is.
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).