Thread by @MarkSZaidEsq

(1) THREAD: As I review the Govt's TRO/PI Motion against #Bolton in its civil lawsuit, I will share my thoughts. I have represented countless govt officials in prepub review matters & litigated more cases than anyone. I was also recognized by a Federal Judge as an expert.

https://twitter.com/PostRoz/status/1273409239235670023

(2) Quick analysis: this is unprecedented, meaningless Govt end-run attempt of SCOTUS Pentagon Papers decision to block publication of a book that has countless copies already in public domain. No way media outlets will be blocked from publishing further excerpts.

3) I can think of only one prior successful injunction. In 1979, in US v. Progressive, govt initially blocked art detailing how to build hydrogen bomb. In granting injunction, Judge basically said 1st Amendment of no use if everyone dead.

Turned out, info was already available.

4)One must question why Govt didn't sue publisher for injunction. Instead, they use Federal Rule Civil Procedure 65 to try & extend scope of injunction. Yet Govt sued publisher of #Snowden's book last year, although that was simply to ensure royalty checks could be grabbed.

5)Even though Pentagon Papers case was litigated in about two weeks time from start to finish, 1971 is not 2020. I would be shocked this Motion would be decided, much less even briefed, in time to stop publication on Tues. That's just not how book distribution system works.

6) Govt's filing tonight contains numerous factual declarations from officials (some classified & not publicly available).

Michael Ellis, a primary player at NSC/WH, took 5 weeks from May 2 - June 9, 2020, to review Bolton's manuscript. Apparently, it was not a priority. Common.

7) That Govt filed classified, in-camera declarations describing "classified" portions of #Bolton's manuscript indicates to me Govt is not ready to prosecute him. Any criminal prosecution would end up revealing specific language. Clearly, Govt is not ready to do so - yet.

8)Not just Ellis, often criticized as harshly partisan, filed declaration saying info classified but also Bill Evanina, NCSC Dir, John Ratcliffe, DNI Dir, & Gen Paul Nakasone, NSA Dir. While Ractliffe is also considered overly partisan, Evanina & Nakasone are well respected.

9)In fact, Gen Nakasone directly claims portion of #Bolton's book is classified at SCI level. If true, strengthens Govt's position, which I agree with, that Bolton was required to submit manuscript for prepub review. That allows Govt to check for any level classified info.

10) In moving forward, how do courts handle this issue:

(1) "government is entitled to substantial deference in its classification decisions."

(2) "Court will not just rubber stamp the government's classification decision."

11)"the Court must satisfy itself 'from the record, in camera or otherwise, that the [government agencies] in fact had good reason to classify, and therefore censor, the materials at issue.'"

12) "Court will not rely on any 'presumption of regularity' if rational explanations are missing."

13) "After reviewing in camera detailed affidavits from officials at several government agencies who seek to classify this information, and after reviewing the manuscript and public source documents provided to the government by Stillman, the Court concludes that the government

14)has properly classified the twenty-three disputed passages in Stillman's manuscript. The affidavits provided by officials from the Central Intelligence Agency, Department of Defense and Defense Intelligence Agency give the Court reason to believe that the censored portions of

15).Stillman's manuscript could reasonably be expected to cause serious damage to national security, create a serious risk to intelligence sources and methods, and/or cause significant strategic and diplomatic setbacks to the United States. The Court also is convinced that the ..

16)disputed passages contain information that is not in the public domain. Accordingly, the Court upholds the classification decisions of the federal government and denies Stillman's First Amendment claims."

17)That was all from Stillman v. CIA et al., 517 F. Supp. 2d 32 (D.D.C. 2007). Quotes were mostly from DC Cir though.

Who was the Judge?

#EmmetSullivan

Yes, that #JudgeSullivan of #Flynn fame.

18) What can be classified is incredibly broad. Ppl should read Exec Order 13526 (2009), Section 1.4, how easy it is for Govt to classify info. Things like "foreign govt information" or "foreign relations" of US, i.e., conversations w/China's leader.

en.wikisource.org/wiki/Executive…

19) I have directly participated in back-and-forths w/Govt in classified mtgs to revise manuscript text. But since 2002, USGOVT has asserted that notwithstanding my security clearance I, as author's attny, have no "need-to-know" content. I litigated this for years. Lost.

20) As a result of many of my #1stAmendment prepub lawsuits, I forced Govt to meet w/my client to negotiate revised text (I believe always successfully to allow publication). Can take months.

But approval is not approval until it is.

21)Meaning, prelim decisions don't matter. Decisions can & do change as draft moves from person to person. Hopefully, one voice speaks for Govt during process but until FINAL decision letter is issued, author can't move forward. Not up to individual to decide otherwise. Can sue.

22)Reading #Bolton's lawyer's letter of 6/10, I have to laugh. I've had clients languish for 24+ months in prepub review. Five months - during a PANDEMIC - is not lengthy. Bolton was fortunate to receive such special treatment. Most authors don't have luxuries he was given.

23)No indiv out of Govt gets to determine what is classified, even if they originally classified it. Numerous cases exist, esp in #FOIA context, upholding this premise. I understand Bolton's frustration. Yes, I do.

But his remedy was to sue, not move forward w/publication.

24) Bad cases make bad law & bad policy. #Bolton has already made it worse for anyone to follow w/prepub obligation bc this is 1st time Govt has sued before book published. Far riskier now moving forward than ever before for authors.

25) By Govt seemingly coming at Bolton so hard, esp w/absurd TRO/PI, it risks being slapped down by Court in a manner that could negatively impact its ability moving forward as well in these cases.

"The sky is falling" comes to mind. Eventually, the shouting is ignored.

END) I could keep going & going but I'll stop w/this.

I see Govt couldn't resist one more time - in case ppl missed it before - to reveal #Bolton's home address.

#Shameful & #unprofessional