Analysis of John Bolton book hearing
On June 19, 2020 a federal court in Washington DC considered the Trump Administration’s request to block publication of former National Security Adviser John Bolton’s book.
The Court did not permit retransmission of the audio so George Conway and Neal Katyal tried to provide a real-time summary, along with their analysis.
00:17:33 neal katyal: thanks for joining us
00:17:51 neal katyal: The Court doesn’t want any rebroadcasting, so you have to dial in if you want to hear the audio. George and I will try to summarize a bit of it for those who aren’t dialed in. The call in number is 888-636-3807. Access code is 6967853.
00:18:17 George Conway: Everyone’s having a bad connection today.
00:18:25 neal katyal: The Court is still working out the bad connection on their end
00:18:42 neal katyal: Here's what the case is about: The Justice Department is suing President Trump’s former National Security Advisor, John Bolton, for breach of contract in an attempt to prevent or delay publication of his book. The lawsuit seeks a temporary restraining order that would prohibit Bolton, as well as his publisher and all other sellers, from selling or distributing the book. The Department of Justice is also seeking all of the profits from the book.
00:19:24 neal katyal: While we are waiting, viewers might want to try to dial in so they can hear the argument.
00:19:55 neal katyal: George did a useful summary of the government's argument. Both of us think the Trump Administration is going to have a very very hard time today in court.
00:20:35 George Conway: Indeed.
00:20:51 George Conway: I had this exact problem with a Zoom call just the other day!
00:20:52 neal katyal: [Just to keep everyone apprised, one of the lawyers in the hearing today was using a cell phone and the connection was poor, so they are basically in a Verizon "can you hear me now" commercial]
00:20:59 George Conway: LOL
00:21:23 George Conway: Anyway, what we were saying in the video beforehand that some of you may not have heard was that the principle issues are:
00:21:31 neal katyal: Stay patient everyone, the case will begin at some point soon.
00:21:52 George Conway: 1. Whether John Bolton complied with the prepublication review process and whether the government conducted that process in good faith.
00:22:01 George Conway: Principal issues
00:22:04 George Conway: i meant to say
00:22:36 neal katyal: [Remember if you are watching this on twitter you should be able to expand the comments on the right side of the screen, and also make the full screen the periscope screen, so you can see our text in big font]
00:23:11 George Conway: 2. Whether the relief sought by the government is an impermissible prior restraint of speech. In 1971, SCOTUS decided the Pentagon Papers case and held that courts could not stop the publication of a highly confidential report on the Vietnam war.
00:23:34 George Conway: And the court set a standard that makes it almost impossible for a court to issue a prior restraint.
00:24:11 George Conway: 3. Whether the court, as a practical matter, can stop the distribution of Bolton’s book even if it were otherwise inclined to. The problems here are:
00:24:21 neal katyal: The lawyers seem to be close to figuring out the technical audio issues, so I think we should be starting shortly
00:24:42 neal katyal: Reminder that if you want to listen to the argument, you have to dial in to the court, as they have forbidden rebroadcasting
00:24:52 George Conway: (A) the government didn’t sue the publisher, which is who is distributing the book, not Bolton himself, so the question is how can the distribution be stopped;
00:24:54 George Conway: And
00:25:09 neal katyal: The court's number is 888-636-3807. Access code is 6967853.
00:25:18 neal katyal: OK, sounds like we are beginning
00:25:32 neal katyal: Presiding Judge is Judge Lamberth. Very smart, very experienced.
00:25:53 George Conway: (B) the book is already in the hands of many people, like journalists and reviewers, and a lot has been disclosed about its contents, and it’s in warehouses. It’s necessary for the government to show that an order against the book would not be a futile act.
00:26:05 George Conway: The lawyers are introducing themselves to the judge, obviously.
00:26:19 George Conway: And Bolton is on the line!
00:26:22 neal katyal: DOJ is introducing its attorneys and Bolton team introducing theirs
00:26:50 neal katyal: Judge begins by saying this is an unclassified hearing, and there is a court security officer to pull the plug if anything classified gets discussed
00:27:14 neal katyal: Judge may hold a classified hearing after this proceeding
00:27:18 George Conway: So Judge Lamberth is cautioning the lawyers not to discuss allegedly classified information because the call is open
00:27:40 George Conway: Judge is saying that he will not give blind deference to government claims of classification
00:28:00 George Conway: And that his job today is to determine whether the government establishes a likelihood that the info is classified
00:28:01 neal katyal: Lamberth--I understand courts don't give blind deference to when govt says something is classified. I give deference. But I have to find it likely that the govt will prevail that the info is properly classified
00:28:20 neal katyal: Govt will go first, and they have the burden.
00:28:34 George Conway: Lamberth saying that the defendants and publishers papers show that the horse is out of the barn
00:28:44 neal katyal: Judge devastating beginning, says "the horse is out of the barn" thousands of books are all over the coutnry
00:28:45 George Conway: Which is the key point I mentioned above and on the video
00:28:58 neal katyal: Exactly -- that is what makes the govt case here so weak
00:29:14 George Conway: No court will order a farmer to lock the barn door if the horse is running around in the pasture
00:29:21 neal katyal: Again, Trump incompetence makes it hard for him to win.
00:29:28 George Conway: (That’s me not the judge)
00:29:46 neal katyal: DOJ lawyer answers "horse out of the barn" with a nonsequiter, saying that Bolton signed a contract requiring prepublication review
00:29:54 neal katyal: That answers the Judges question in absolutely zero ways
00:30:01 George Conway: Gov’t lawyer saying Bolton broke his contractual promise to submit to prepublication review
00:30:08 George Conway: Avoiding the horse/barn issue
00:30:16 George Conway: Exactly, Neal.
00:30:25 George Conway: He’s just going into his prepared remarks.
00:30:42 George Conway: He’s saying the electronic versions could be stopped.
00:30:49 neal katyal: We understand the conference line of the court is full. George and I will take it on ourselves to try to summarize the audio as best we can so you all know what's happening
00:31:06 George Conway: But that doesn’t matter if I can read the information in the New York Times and the Wall Street Journal
00:31:10 neal katyal: This is not a good oral argument--he's just reading his notes of his preplanned intro. But the Judge went straight to the horse in barn issue
00:31:40 neal katyal: Now, the DOJ lawyer is starting to answer it, saying Rule 65 allows the fed ct to bind 3d parties, not just those who signed the contract (like Bolton).
00:31:53 George Conway: Now the government is saying an injunction would extend not only to Bolton, the only party, but the distributors.
00:32:04 George Conway: I think that’s a very tendentious reading of Rule 65
00:32:05 neal katyal: He's hiding it in legalese, but what he's saying is that DOJ is trying to block the publisher from distributing the books
00:32:32 neal katyal: It's ridiculous, if they believed this argument, they would have sued the publisher. They are just hiding it behind a shell
00:32:50 George Conway: Bolton is not involved in the distribution of the books. And he has no control over the distribution process. Because of that the injunction should not stop the book.
00:32:58 George Conway: I’m sure Bolton’s lawyers will make this point.
00:33:06 neal katyal: Now, DOJ lawyer saying Bolton engaged in self-help, and shouldn't be rewarded. He should have waited for prepublication review, or at least sued the govt.
00:33:26 George Conway: The judge is being very quiet.
00:33:50 neal katyal: DOJ now says there are larger implications in this case. Says ct should look at the policy implications -- deterrence. [I'm not sure who needs deterring more here, Bolton or Trump]
00:33:52 George Conway: He hasn’t interrupted.
00:34:26 George Conway: DOJ is saying if the court doesn’t stop this, then other author/former officials will blow off the preclearance process.
00:34:36 neal katyal: Yes, Judge Lamberth is not, um, a quiet man. So this is a bit unusual, but I think wants to hear the govt out. That said, so far this lawyer hasn't answered the judge's first question, and he is quite a way through the argument
00:35:35 George Conway: Now an interruption about whether the Judge can see the lawyer on video
00:35:37 neal katyal: This is a really interesting thing about oral advocacy: a lot of folks try to hide the best argument on the other side, and pretend it's not there. This attorney is doing that. I prefer the style of someone like Peter Keisler, who has been known to start his arguments "my opponent's best argument is X, here's why its wrong."
00:35:43 George Conway: Now the judge is interrupting with q
00:36:02 neal katyal: Lamberth 2q: "why wasn't this classified material identified earlier?"
00:36:16 George Conway: Why didn’t the Gov’t identify classified info earlier?
00:36:19 George Conway: Good question.
00:36:34 George Conway: Now the lawyer is referring to the affidavits cryptically because they are under seal.
00:36:56 neal katyal: The claim is that the political person, Ellis (who used to work for Devin Nunes) had access to new classified material that the career officer did not.
00:37:02 George Conway: Judge asking whether there is some info that became classified after the review by the principal reviewer, Ms. Knight
00:37:17 George Conway: And that goes to the gov’t’s good faith.
00:37:40 George Conway: Gov’t conceding that one of the senior guys classified material when he saw the draft
00:37:48 George Conway: Oops
00:37:50 neal katyal: Remember that the career classification official said the book, as edited/redacted, was OK. then Ellis came along, got appointed to the post, and held the book up. (It's not clear Ellis even had the requisite security clearance training to perform this task when he made those determinations. They raced him into this new job, suspiciously)
00:38:08 George Conway: So they just conceded Ellis classified something after the fact. Big concession.
00:38:13 George Conway: Big admission.
00:38:40 neal katyal: Lamberth 3q: "Did the President instruct anyone to say portions of the book were classified?"
00:38:41 George Conway: Now Lamberth is asking about whether the President ordered anyone to classify anything.
00:38:48 HOST: Reminder to all watching. The audio from the court could not be streamed today and the line is full. Neal and George are summarizing the case.
00:38:49 neal katyal: DOJ lawyer says he doesn't have any such info
00:38:53 George Conway: And the lawyer says—LOL—I haven’t spoken to the president
00:39:00 George Conway: Kind of a dodge IMO
00:39:36 neal katyal: Total dodge. When I was in the govt, I would have definitely gotten an answer to that predictable question. You don't need to interview POTUS to know. Either the lawyer didn't do his job or someone didn't want him to do his job.
00:39:54 George Conway: Judge is saying he hasn’t seen the manuscript and is trying to figure out what is it the government has a problem with in the book
00:40:33 George Conway: Surprised the government hasn’t given the court the markup that Ellis apparently did of the book.
00:40:43 George Conway: That strikes me as a sign of weakness.
00:41:08 George Conway: If the info were clearly classified, and I were the government, I’d be waiving it around vigorously.
00:41:15 neal katyal: The sad thing here is that the govt would in a normal situation be right -- govt officials shouldn't go around the prepublication process after they've had access to highly classified info. The problem is that the process here has been thoroughly politicized by Trump -- so you can't trust the first thing about it. It's another sad example of Trump breaking ordinary govt processes that serve impt ends
00:41:34 neal katyal: Lambert 5th main Q: "Assuming the book is already out there, what would I be enjoining?"
00:41:35 George Conway: Judge is saying, assuming the book is already out there, what is it I’m enjoining. BINGO>
00:42:11 George Conway: Government is saying Bolton can ask that the book be clawed back. That’s pretty week.
00:42:13 neal katyal: Weird answer. DOJ lawyer says Bolton delayed the book in March, so can do it again. But in March the book wasn't with 100s of reporters and book stores.
00:42:23 George Conway: *weak
00:42:38 neal katyal: What is the Judge gonna do, go order federal marshals to claw it out of Jake Tapper's hands?
00:42:49 neal katyal: this is embarassing
00:42:54 neal katyal: A waste of the Court's time.
00:43:26 George Conway: Judge is asking why he didn’t get a copy of the letter from Ellis with the redactions of supposedly classified info. Lawyer says it’s an oversight.
00:43:41 neal katyal: Sorry we aren't able to provide audio. The Court issued an order forbidding all rebroadcasting, so that's why George and I are summarizing it for you all.
00:43:49 George Conway: That’s ridiculous. If the classified info were so clearly classified, they’d have given it to the judge.
00:44:21 George Conway: It would be the government’s best point.
00:44:30 neal katyal: Exactly right George
00:44:48 HOST: Reminder to all watching. We are not allowed to stream the audio today. There is a dial in but it is full. There is no sound. Neal and George are summarizing the case.
00:44:50 George Conway: And that clearly has Judge Lambetth’s antennae up because he’s asking, where is this material?
00:45:06 George Conway: Judges like Lamberth can smell weakness.
00:45:25 George Conway: Because they’ve seen it all.
00:45:25 neal katyal: Lamberth--how common is it for senior officials to intervene in a process where career officials have already found no classified material is in a manuscript?
00:46:02 neal katyal: Yes, the beauty of Article 3 of our Constitution and life tenure is that you get judges like him, who've been around for a long time and have a lot of wisdom, and also have seen everything
00:46:49 neal katyal: DOJ lawyer says he isn't aware of another prepublication review after a career official sign off. But this is an extraordinary circumstance because this is the national security adviser and recent info
00:47:09 George Conway: Back in the 1970s, Lamberth was head of the civil division of the US Attorney’s office that is arguing this case.
00:47:34 George Conway: He has the perfect background for this case.
00:47:46 neal katyal: Lamberth "go ahead with whatever you wanted to continue with" -- wow -- not inspiring lede for a lawyer to hear
00:48:09 neal katyal: That's right, George! I had forgotten! That's impt context.
00:48:15 George Conway: That’s a sort of signal that the judge isn’t really buying what he’s hearing and has heard enough.
00:48:30 George Conway: It’s like okay, whatever.
00:48:44 neal katyal: DOJ "flagrant breach of Bolton's commitment" to publish this. Not his role or entitlement to decide when process stopped.
00:48:57 George Conway: The government hasn’t been responsive to the judge’s concerns.
00:48:59 neal katyal: If Bolton upset, he should have sued in court.
00:49:31 George Conway: That’s a nice debating point, but the government needs to show it’s entitled to relief now and that the relief will make a difference.
00:49:46 George Conway: Litigating what kind of case Bolton could have brought is beside the point.
00:49:55 neal katyal: The DOJ argument has made a not bad argument for why Bolton breached his commitemnts, which might be relevant to Bolton's profits -- down the road in litigation a long time from now. But it's totally irrelevant for right now, and the book ban Trump is seeking.
00:50:24 neal katyal: And the action for Bolton's profits would have discovery first -- and I suspect that discovery would be quite interesting.
00:50:29 George Conway: Yes and no—the government hasn’t bothered to show the judge what’s so classified and hasn’t submitted that even in writing!
00:50:48 neal katyal: Agree that's why I said "not bad" -- I was being generous
00:50:53 George Conway: Now, Chuck Cooper is arguing for Bolton.
00:50:58 George Conway: Yes, not terrible but not good.
00:51:00 neal katyal: Cooper now starting his argument for Bolton
00:51:14 George Conway: Cooper was an Assistant Attorney General in the Reagan administration.
00:51:33 neal katyal: Says the Bolton team was trying before court to figure out the right metaphor, and settled on the idea that the horse is out of the barn
00:51:37 neal katyal: Texas v Alabama jokes ensue
00:52:30 neal katyal: Cooper begins by citing to a video clip, capturing the surreal nature of what govt is seeking. A clip of a WH reporter, on WH grounds, asking POTUS press secretary, holding a copy of the book, reading questions from the book. The idea that the horse is out of the barn is an understatement, Cooper says
00:52:45 George Conway: Now Cooper pointing to TV video showing WH reporter holding the book. A picture is worth a thousand words.
00:53:20 George Conway: Cooper: This isn’t a judicial proceeding. It doesn’t have as its purpose convincing you to order Bolton to do something he has no power to do and that you can’t make him do.
00:53:27 neal katyal: You opened the hearing, Judge, with "What am I to do now?" Bolton is utterly powerless to do what the govt wants, there is no jurisdiction here --
00:53:45 neal katyal: The speech has been spoken, it can't be unspoke
00:53:49 George Conway: Cooper saying the harm is not redressable because the book is out there and therefore
00:53:58 George Conway: The speech has been spoken.
00:54:02 neal katyal: This is theater. To use your courtroom as a stage. And to enlist you as a player.
00:54:19 George Conway: Cooper is saying this is just theatre by the government and the government is using the court as a player in that theater
00:54:22 George Conway: *theater
00:54:27 neal katyal: Cooper is excellent here. It's exactly right, with excellent wording for Lamberth.
00:54:46 George Conway: Lamberth won’t take well to being used for a publicity stunt.
00:54:50 George Conway: Most judges won't.
00:55:05 George Conway: But Cooper has it exactly right. This case is a publicity stunt.
00:55:16 neal katyal: to be sure, Bolton has delayed publication date, and that shows his good faith. He's gone thru an exhaustive delay and review process
00:55:24 George Conway: The irony is that it’s a stunt that will sell more books.
00:55:37 George Conway: Judge no questions.
00:55:55 neal katyal: I agree George on the stunt point--and Cooper has raised the point in a really elegant way. I've not seen him in court before, but this is really good.
00:56:00 George Conway: Sometimes when a judge is asking no questions it means that the case is so clear that it’s not worth asking questions.
00:56:02 neal katyal: Streisand effect!
00:56:45 HOST: Reminder to all watching. We are not allowed to stream the audio today. There is a dial in but it is full. There is no sound. Neal and George are summarizing the case.
00:56:47 George Conway: Cooper is an incredibly experienced lawyer and I’m sure he’s appeared before Lamberth many times and knows exactly how to address Lamberth.
00:57:06 George Conway: Lamberth asking why didn’t Cooper sue.
00:57:09 neal katyal: Cooper says Bolton obeyed to the letter. Judge interrupts right away
00:57:28 neal katyal: No, he went ahead, Judge said and published. He didn't sue the govt. Why did he decide to take that risk?
00:57:36 George Conway: Judge asking why did Bolton take the risk of going ahead without final approval.
00:57:51 George Conway: Final written approval.
00:57:59 George Conway: A lot of people have asked that question.
00:58:00 neal katyal: Cooper: We believe that Bolton was not subject to a requirement for written authorization permitting publication.
00:58:23 George Conway: Now judge is asking about whether there is SCI (sensitive compartmentalized info) in the book.
00:58:31 neal katyal: Judge asks about an affidavit saying there was SCI (Sensitive Compartmented Info) in the book. So that would require advance written authorization before publication.
00:58:38 George Conway: Cooper disputing that, citing Ellen Knight.
00:58:49 neal katyal: Cooper's answer here is a bit garbled. But coming around to point that career official Knight blessed the manuscript
00:59:11 neal katyal: Hard for the lawyers to talk about in open court. This may go to a classified setting to discuss.
00:59:37 George Conway: So Lamberth saying I don’t know if what you’re saying is correct re SCI, and that Bolton just walked away from the process and didn’t have that right.
01:00:14 neal katyal: I think Judge Lamberth is right here in the ordinary case. As a rule of thmb, we don't want former govt officials to take matters into their own hands. The problem is that the rule of thumb doesn't work well when Trump cuts off the hand -- politicizing the natl security process left and right.
01:00:17 George Conway: And that’s the weakness of Bolton’s case, if you assume the government acted in good faith. That’s why the government focused almost exclusively on that point.
01:00:41 George Conway: Judge can’t resolve the good faith point without looking at the book and he hasn’t done that.
01:00:46 neal katyal: I agree George, but that really doesn't go to the book banning injunction at issue today, only the merits down the road.
01:00:57 neal katyal: And before the merits are reached, there will be discovery....
01:01:08 HOST: Reminder to those just joining. We are not allowed to stream the audio today. There is a dial in but it is full. There is no sound. Neal and George are summarizing the case.
01:01:31 George Conway: Correct. It doesn’t change the fact that prior restraints are virtually impossible to get and it doesn’t change the fact that the book is already out there.
01:02:15 George Conway: It goes to whether Bolton may have to give the proceeds back, which is the relief the government may ultimately be entitled to, as you pointed out up top, Neal.
01:02:33 neal katyal: Cooper says the contracts Bolton signed don't require written authorization here.
01:03:04 neal katyal: Once career official Knight said no classified info, then there is no further obligation to wait for a further statement, Cooper says.
01:03:09 George Conway: Cooper is saying that once Ms. Knight said there was no classified info, Bolton was good to go.
01:03:18 George Conway: —free to publish
01:03:39 neal katyal: The lawsuit alleges that Bolton is in violation of two nondisclosure agreements (NDAs) that he signed on April 5, 2018, when he entered is position of National Security Advisor. The first NDA, Standard Form 312, involves obligations Bolton assumed as a condition of obtaining a security clearance giving his access to classified information. He agreed in this form not to “divulge classified information to anyone” unless he officially verifies “that the recipient has been properly authorized by the United States Government to receive it,” or he receives prior written authorization to divulge the information from the entity responsible for the information’s classification. He also agreed that if he is uncertain of the classification status of any information, he must confirm from an authorized individual whether the information is unclassified before disclosing the information.
01:03:58 neal katyal: The second NDA, Standard Form 4414, involves the commitments Bolton made in order to get access to a special subset of classified information, labeled Sensitive Compartmented Information (SCI). This form requires Bolton to submit to a security review by the NSC any writing “that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that [he has] reason to believe are derived from SCI, that [he] contemplate[s] disclosing to any person not authorized to have access to SCI or that [he has] prepared for public disclosure.” It also states that he will not “disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until [he has] received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted.”
01:04:00 George Conway: Now the Judge is pointing to specific language in the nondisclosure agreement.
01:04:20 George Conway: The language
01:04:38 George Conway: Says “in writing” but it’s about something a little different
01:05:34 George Conway: It doesn’t go to what form notice is required for an author to be told that his book doesn’t have classified info.
01:06:31 George Conway: Chuck is saying Bolton doesn’t have written authorization to be relieved of the contract but that doesn’t speak to whether he has received appropriate confirmation from the government that his book is okay.
01:07:02 neal katyal: I agree, Cooper is basically just saying Bolton was very patient, waiting 4 months. But lots of folks wait more than that for prepub review
01:07:37 neal katyal: On the other hand, there is a determination from the career official saying no classified material.
01:07:46 George Conway: Chuck saying that there are 39 pages of notes from the prepublication review that have been submitted to the judge
01:08:04 neal katyal: Cooper mentions a "troubling revelation" but Lamberth interrupts with a Q asking about Bolton giving the publisher the manuscript early
01:08:10 George Conway: Judge asking when the manuscript was finalized with the publisher
01:08:20 neal katyal: We are waiting to learn about the troubling revelation...
01:08:53 neal katyal: My bet is it has something to do with Ellis, whose role in this will I bet prove to be very interesting if it ever goes to discovery
01:09:02 George Conway: None of the judge’s questions really go to the question of whether he’s doing to issue a prior restraint against a book that has already been released to numerous people.
01:09:39 neal katyal: [Ellis is the Trump political appointee who overturned the career official Knight's determination]
01:09:41 George Conway: That’s one thing to look forward to in this case—the discovery. What prompted Ellis to intervene.
01:10:16 George Conway: Might it have something to do with Trump’s view that “every conversation” with him is classified? Asking for a former National Security Advisor.
01:11:06 neal katyal: Judge asks if the book does have classified info, then Bolton is in breach, right?
01:12:02 neal katyal: Cooper says this contract doesn't impose an obligation to Bolton when there was no hint that there was SCI material until the papers before this court.
01:12:15 George Conway: And the answer is probably yes, unless he can convince the court that what Knight said was enough for him to publish.
01:12:35 neal katyal: cooper is saying that Trump folks have never said SCI, the most classified stuff, was in the book until this litigation last week.
01:12:50 George Conway: But again, even if the government established a breach to a fare-thee-well today—even if it were conceded—that doesn’t mean it gets an injunction.
01:13:31 neal katyal: Exactly. That's why today's hearing as always been such a loser for Trump. He almost certainly will lose, and just acted like a great book agent for Bolton in the process
01:13:51 neal katyal: But I guess that is the Trump M.O.
01:14:23 George Conway: Bolton’s case on whether he gets to keep the proceeds will turn on whether he can show that White House officials acted in bad faith and made up their claims that SCI is in the book.
01:15:34 George Conway: Some lawyers out there, even though they are sympathetic to Bolton’s right to publish, have argued that Bolton and his lawyers took a huge risk in just publishing without going to court and getting the court’s blessing.
01:15:35 neal katyal: Is there a good faith defense for Bolton George? I am not sure.
01:15:54 neal katyal: It's a civil disgorgement proceeding
01:16:28 George Conway: Well, if he shows that he was right in concluding that the government was acting in bad faith, then he can say he acted in good faith and that the government can’t enforce the contract because it didn’t.
01:16:43 George Conway: But again that turns on whether there’s SCI in the book
01:16:54 George Conway: Legitimate SCI
01:17:04 neal katyal: That sounds right, thanks.
01:17:17 George Conway: (Again, SCI means “sensitive compartmentalized information”—really secret stuff.)
01:17:33 neal katyal: These zoom arguments are so funny -- Cooper talking and someone started ringing his front doorbell. I love Lamberth's demeanor, didn't phase him one bit.
01:18:09 neal katyal: Cooper now returning to horse out of barn point. Smart. On much stronger ground here
01:18:10 George Conway: They said they were in a conference room lol
01:18:18 George Conway: Probably a dining room table
01:18:31 neal katyal: hey, that's all of us now
01:18:54 neal katyal: although your dining room is a bit different than mine
01:20:07 George Conway: Cooper saying the allegations about SCI weren’t in the complaint
01:20:09 neal katyal: Cooper pointing out that the govt's complaint never alleged the book had SCI material in it. The govt came up with that later.
01:20:15 HOST: Reminder to those just joining. We are not allowed to stream the audio today. There is a dial in but it is full. There is no sound. Neal and George are summarizing the case. Neal will post a summary later, Thank you!
01:20:37 George Conway: That doesn’t look good for the government although they will say they were working very fast, etc.
01:20:55 neal katyal: Thanks HOST. Yes, sorry the court has forbidden retransmission of the audio -- and they've only made a few lines available for the public, so we are trying to summarize the full argument for you
01:21:16 George Conway: I’m glad I dialed in early.
01:21:27 George Conway: There were already 100+ people on the call when I dialed in.
01:22:01 George Conway: Cooper saying the case should be thrown out if the judge doesn’t see any SCI in the book.
01:22:27 George Conway: Not sure that’s a motion to dismiss as opposed to summary judgment but whatever.
01:23:19 neal katyal: I'd be surprised if the government really wants to litigate this case. I can imagine far more damaging stuff coming out in this lawsuit against Trump.
01:23:41 George Conway: One important point—judge hasn’t really challenged the Cooper’s assertion that because the book is already out there that Bolton can no longer stop it and the judge can’t either.
01:24:00 neal katyal: Exactly George. I agree. There's been no questioning on that.
01:24:08 neal katyal: And that is the heart of the issue today.
01:24:16 George Conway: Which tells us that the judge has been given no reason to believe that, as he put it, the horse isn’t out of the barn.
01:24:28 George Conway: The gov’t did ZERO to rebut that assertion effectively.
01:25:01 George Conway: What was the big revelation Cooper mentioned
01:25:09 neal katyal: I don't know what the govt could have said, in all fairness. But, in fairness too, that is why no DOJ official from any Administration I know of would have sought this book banning hearing.
01:25:31 George Conway: If the Gov’t were truly serious about this case, it would have brought it a couple of weeks ago,.
01:25:43 neal katyal: Exactly. It's just incompetence through and through.
01:25:57 George Conway: What was the “troubling revelation”?
01:26:05 neal katyal: But of course 2 weeks ago the career official had said there wasn't any classified material. So they needed time...
01:26:39 George Conway: Yeah.
01:26:49 neal katyal: Troubling revelation? Still haven't heard about it. Cooper said those words, and then got interrupted.
01:27:12 George Conway: I wish I could unmute and ask!
01:28:21 neal katyal: Cooper I think may be getting there. He's now about to compare Knight's process v. Ellis'
01:28:29 George Conway: yes, this may be it
01:28:38 George Conway: He’s complimenting Ellis
01:28:50 George Conway: I mean he’s complimenting Knight not Ellis
01:29:07 George Conway: And judge is pointing out no affidavit from Knight and Cooper saying yes that’s right
01:29:20 George Conway: Which obviously makes the Judge suspicious
01:30:04 neal katyal: Cooper is saying Knight (the career official at the Archives) has a great deal of experience in the area.
01:30:05 George Conway: Cooper is building up Knight. She’s from the national archives. This is what she does—has been doing for many years—screening out classified info.
01:30:33 neal katyal: The review after it, however, was difft. The DOJ lawyer, Cooper says, already admitted there was no precedent for a review after the career official signed off.
01:30:49 neal katyal: The troubling information that has surfaced in the govt's amended complaint is ...
01:31:00 George Conway: Cooper: Troubling info in amendment complaint
01:31:23 George Conway: *amended complaint
01:31:30 neal katyal: that the senior director O'Brien tasked (OBrien is the Natl Security Adviser) to review the book ….
01:31:42 neal katyal: [This is taking a while for Cooper to say]
01:31:56 neal katyal: ...Ellis received his original classification authority on March 1, 2020.
01:32:09 neal katyal: ....He began his review of the book on March 2
01:32:14 George Conway: Cooper: Ellis received his original classification authority on March 1, 2020, he began his “additional prepublication review” on May 2.
01:32:20 neal katyal: May 2, 2020, not March, Cooper says he misspoke
01:32:26 George Conway: A week after Ms. Knight completed heres.
01:32:30 George Conway: hers.
01:33:15 George Conway: Ellis’s authority was “quite fresh” and seems unlikely in the extreme he had done prepublication reviews before
01:33:16 neal katyal: The govt amended its complaint, and makes clear that Ellis was a quite fresh new official to prepublication review.
01:33:40 neal katyal: He was not trained as an OCA (original classification authority) at the time he undertook his review
01:33:42 George Conway: Cooper: Ellis was not trained as a classification authority.
01:34:35 neal katyal: The Executive Order and the regs, Cooper says, makes clear Ellis had to have training first
01:34:39 George Conway: And the exec order mandates that training occur before someone engages in classification review
01:34:48 neal katyal: this sounds technical but it's incredibly impt. If Cooper is right, the govt case has collapsed
01:35:03 George Conway: So Cooper is saying that Ellis was not properly authorized to do reviews.
01:35:10 George Conway: This is big indeed.
01:35:23 neal katyal: EO 13526 1.3(5)(d) and 23 CFR 2001.70(d)(1) require someone to have classification training before they can take this action
01:35:45 George Conway: This would be a big fact going to whether Ellis’s actions have any effect at all, and whether the government has acted in good faith.
01:35:51 neal katyal: The agency must suspend anyone who doesn't have annual training
01:36:09 George Conway: This is the kind of thing that a judge could really blast the government for.
01:36:26 neal katyal: George's good faith point is really impt -- if cooper is right, the govt rushed Ellis into the job to try to overrule Knight, but forgot to give him the requisite training. By federal law, that nullifies his classification powers
01:36:27 George Conway: Will be interesting to see what the government’s response will be.
01:36:45 George Conway: Probably will be that this doesn’t create rights for authors like Bolton.
01:37:04 George Conway: And he hadn’t received final authorization to publish.
01:37:47 neal katyal: Wow. Cooper saying Ellis has admitted he didn't have the training until June 10.
01:37:51 George Conway: And no harm, no foul, Ellis can be trained and is now trained and is sticking to his determination.
01:38:17 George Conway: That’s what the government will probably try to argue.
01:38:29 George Conway: But this is a big problem for the government.
01:39:15 neal katyal: I agree the govt can try that argument George, but it stinks to high heaven. Have a career expert determine no classified material left in book, then Trump rushes a new person in, who makes a determination but is not only inexperienced but hasn't had the mandated training, and now overrules the career official with said training and experience.
01:40:37 neal katyal: Judge Lamberth asks about an opinion by Judge Wald in McGhee.
01:44:17 neal katyal: Cooper now going back to horse and barn, that govt asking Bolton to retrieve and destroy 100,000 books
01:44:31 neal katyal: I suspect he's winding up now.
01:44:51 neal katyal: George and I will do an on camera analysis after this
01:45:24 neal katyal: The DOJ lawyer will have a rebuttal after Cooper, and we'll then break it down on camera after
01:46:23 George Conway: I agree with you that the rebuttal argument that Ellis’s lack of classification training doesn’t matter shouldn’t fly
01:46:48 George Conway: The image of destroying books is a powerful one
01:48:05 neal katyal: Cooper now getting quite long winded...saying the contract didn't require Bolton to go to court first.
01:48:45 neal katyal: This is a surprising choice, he's been up nearly an hour, and I would think would want to sum up and end on a high note.
01:50:04 George Conway: I think we’re reaching the point of diminishing marginal returns here.
01:50:22 neal katyal: Judge says Bolton didn't tell govt he was going to publish, did he? Cooper says no.
01:50:43 neal katyal: I am interested to see how DOJ handles rebuttal here.
01:50:48 George Conway: Time for Cooper to sit down.
01:51:08 neal katyal: If DOJ hasn't come up with an answer to horses and barns, this proceeding is over
01:51:10 George Conway: And he’s summing up.
01:51:36 George Conway: Judge asking a couple questions
01:52:29 neal katyal: Lamberth: 4 star generals in this administration haven't been shy about standing up to the administration. And one is saying there is classified info here
01:52:59 George Conway: Asking about some affidavit from an army general and another affidavit and saying that they might have some credibility although it’s hard to hear the judge
01:53:37 George Conway: Judge seems to be saying he deems career people more credible than political appointees
01:53:50 neal katyal: Lamberth: FBI field office official would have credibility w/me. I don't want to give blind deference to these 2, but what about these? I am not the substance guy. How do I decide?
01:53:56 neal katyal: Excellent qs from Lamberth
01:54:04 George Conway: And this goes to classification
01:54:55 George Conway: Cooper saying he got those late the night before last and doesn’t have basis to challenge the credibility of the affiants
01:55:22 George Conway: Cooper going back to horse out of barn
01:55:39 neal katyal: Cooper: we received these affidavits late the night before last. We have no basis to challenge those affidavits or their credibility. And when we get past this motion (to stop publication of the book), and we assess remedies that are possible (like taking profits), then the discovery process will provide the ct with what it needs.
01:55:51 George Conway: And saying that discovery can sort this out later
01:55:53 neal katyal: This is the exact right answer. It's not relevant to today
01:56:29 George Conway: Right. Cooper saying deny this motion, because the horse is out of the barn in essence, and we will get to that later
01:56:36 neal katyal: It's a bit weird that Cooper spent so long however pushing back against all of this for most of the last hour. He could have basically just said the only q is remedy and horse being out of barn.
01:56:48 George Conway: And it’s unconstitutional anyway he says.
01:57:08 George Conway: I agree. I would have focused more on relief issues and First Amendment.
01:57:13 neal katyal: OK Cooper done. DOJ gets last word
01:57:14 neal katyal: Starting now
01:57:37 neal katyal: I suspect about 10 min rebuttal, and then George and I will do some on camera commentary
01:57:51 George Conway: DOJ lawyer—the horse is out of the barn because Bolton let it out.
01:58:00 neal katyal: DOJ: the Q is who let the horse out of the barn? [I always thought it was about who let the dogs out...]
01:58:05 George Conway: LOL
01:58:14 neal katyal: They say Bolton is to blame
01:58:23 George Conway: But that goes to the merits and not to whether you can get the horse back into the barn.
01:58:29 neal katyal: Even if true, irrelevant. I don't understand this DOJ argument. The point is the ct is powerless
01:58:34 George Conway: Right.
01:58:43 George Conway: No redressability.
01:59:27 neal katyal: Weird, now DOJ is saying Bolton should stop audiobooks and digital copies. I don't understand that. The harm of a release of classified material is largely binary -- it's about the info coming out once. There's no extra marginal harm of an additional audiobook or digital copy. This is ridiculous
01:59:54 neal katyal: [Well, I guess there are some audiobooks, like Dershowitz books, where each marginal copy produces a distinct harm]
02:00:09 George Conway: Right what’s the point stopping downloads when people have the hardcopies?
02:00:57 George Conway: It’s silly.
02:01:03 George Conway: The point is that the information is out there.
02:01:32 George Conway: It’s in warehouses and in the hands of distributors who have not been sued and have no legal obligation to stop distributing the book.
02:01:49 George Conway: The government isn’t really disputing this.
02:02:08 George Conway: except for this clawing back stuff
02:02:09 neal katyal: Exactly. DOJ lawyer going back into the weeds about what the contract says.
02:02:24 George Conway: Which I don’t see how the court has the power to do.
02:02:38 George Conway: Will the government address Ellis’s training? It better.
02:03:35 neal katyal: It's sad to me that DOJ is coming into federal court, in such a hamhanded way, to stop publication of a book.
02:03:39 George Conway: This is all so repetitive at this point.
02:04:57 George Conway: Government pointing to language in the NDA about info “relating to SCI” being covered, not just SCI itself
02:05:13 George Conway: Judge quoting “relate to or derive from” SCI
02:05:36 neal katyal: yeah, its so in weeds, and irrelevant
02:05:40 George Conway: yep
02:06:12 neal katyal: If he was gonna start w/irrelevant,, if I were DOJ lawyer I would have started with the 4 star general and the FBI field officer statement. That's so optically powerful, as even the judge indicated.
02:06:34 George Conway: And that goes to the obligation to submit, not to whether the book can be published, it sounds like. But this is in the weeds, as you say.
02:07:30 George Conway: I agree with you, Neal. Hammer on something good that the judge found “troubling” about Bolton’s case. Say, Your Honor, you’re right to be troubled by these affidavits and Bolton’s lack of response to them. Blah blah.
02:07:59 George Conway: I’m still waiting for the answer to Ellis’s lack of training.
02:08:34 neal katyal: Really interesting that DOJ lawyer has avoided any discussion of that. Seems very suspicious
02:10:17 neal katyal: Note to our viewers: when this argument ends, there will be a 2-minute or so delay as we switch over to camera. It's unfortunate that the streaming services don't enable a simple way to do this. We are literally, thanks to our brilliant producer Lindsay Scola, using zoom, twitter, steamyard, all together to make this possible. And of course the court order has made it harder because we couldn't rebroadcast the audio
02:10:44 neal katyal: Hearing largely over
02:10:56 neal katyal: There will be a classified hearing at some point soon
02:11:01 neal katyal: Must be done in person
02:11:10 George Conway: Judge making a joke and taking case under advisement and saying he’s going to review materials in camera (in private) and in person because it’s classified
02:11:19 George Conway: or potentially
02:11:30 neal katyal: DOJ addressing Ellis training now
02:11:35 George Conway: Now the gov’t lawyer pipes up re Ellis
02:11:44 neal katyal: Ellis received annual training on June 10.
02:11:47 George Conway: Says Ellis received training on June 10
02:11:49 neal katyal: Very problematic for govt
02:11:53 George Conway: That It’s a “rabbit trail"
02:12:08 George Conway: And some of the materials was classified before Ellis’s review
02:12:14 George Conway: At least 3 of the examples.
02:12:14 neal katyal: They are saying material was classified before Ellis's determination.
02:12:23 neal katyal: Lamberth says that's what I want to look at in classified info
02:12:29 George Conway: Judge says he will look at that in camera.
02:12:42 neal katyal: George and I on camera momentarily