Josh Gerstein Profile picture
Jun 18, 2020 13 tweets 3 min read Read on X
Thread with a few thoughts on DOJ's request for a TRO/PI to block publication of Bolton's book....Seems like a rear-guard action at this point, especially given what appears to have been a coordinated effort by S&S to get the juicy bits out there today
politico.com/news/2020/06/1…
DOJ going to have to overcome pretty strong claims of futility by Bolton's lawyers, previewed here: courtlistener.com/recap/gov.usco… So this is likely to become a battle over the proceeds from the book rather than whether the book gets out.
One of the most interesting details in this saga: Ellen Knight, the NSC staffer who handles reviews like this and spent more than four months working with Bolton on edits allegedly "signed off" on a version of the book on April 27, according to Bolton lawyer Chuck Cooper.
However, seems like an informal OK and Bolton was to await a formal letter, which never came. Meanwhile current National Security Adviser Robert O'Brien decided he thought there was still classified info in the book. An aide to O'Brien, John Ellis, then took five weeks to read it
Now, Knight is reportedly retaining a lawyer Does she think she was overruled for some improper reason?
Also some have made a big deal of the fact that DOJ didn't sue S&S, but the filing Wednesday makes sweeping claims that the court can not only enjoin the publisher but even individual bookstores from distributing the book. (DOJ does not appear to argue that about news outlets.)
If it didn't appear the cat was out of the bag at this point (I'm more a dog person), the main issue in the case at this point would be whether a prior restraint is appropriate and against whom. DC federal courts haven't dealt with classified publication cases much recently
The DOJ brief today says the DC Circuit ruling on this in a 1983 case involving ex-CIA officer Ralph McGehee was wrong when it suggested the governments has 'a much heavier burden' to restrain publication than just recoup ill-gotten gains casetext.com/case/mcgehee-v…
Problem with that argument is that if Judge Lamberth finds that language is binding precedent, he's obliged to follow it and only DC Circuit en banc or #SCOTUS could overturn it. Seems unlikely Lamberth would buck the circuit on that to issue what seems like a futile TRO.
Nevertheless, a line up of major national security brass to claim potentially serious damage or worse from stuff in the book. Interestingly, no submission from O'Brien, though. Reluctant to depart from usual practice that NSA doesn't testify?
It seems like the current issue has less to do w/the content of Bolton's manuscript than with some classified intelligence-gathering capability...allegedly revealed by what's in there. But whatever is in there is on many newsdesks around town and likely in thousands of bookstores
So, seems like the most benign spin on the litigation is that DOJ and USG are trying to preserve its ability to enforce classified-info NDAs in the future without being accused of double-standards exempting ex-senior officials.
More nefarious spin: it's all hackery aimed at extracting a pound of political flesh for an angry president. And, of course, many players involved now with what could be varied/mixed motives. ENDS

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More from @joshgerstein

Sep 11
THREAD: Just finished listening to back-to-back oral arguments at 9thCircuit on sanctions for lawyers involved in GOP Arizona gubernatorial candidate Kari Lake’s failed suit seeking to prohibit use of electronic voting machines in 2022 election. (1/X)
Bottom line: sounded like panel is inclined to uphold the $110,000 penalty on Andrew Parker and Kurt Olsen, but may lift the $12,000 imposed on famed Harvard law professor emeritus Alan Dershowitz. (2/X)
Judge Patrick Bumatay sounded sympathetic to all three sanctioned lawyers. Judge Kim Wardlaw (Clinton) seemed generally unsympathetic. Judge Ronald Gould (Clinton) was somewhere in middle, seeming inclined to uphold sanctions against Parker & Olsen, while sparing Dershowitz. 3/X
Read 8 tweets
Sep 5
HAPPENING NOW: 1st hearing in 10 months in Trump DC election case. Judge Chutkan says she won't set a schedule for the case during this session but hopes to do so later today.
Trump has entered not guilty pleas through his defense attorneys to the new indictment in the case (which contains the same basic charges). Trump is not here today. He was excused.
Chutkan is now noting how many deadlines were days or a few weeks away when the appeal was taken by Trump and froze the case by appealing. But sounds like she isn't inclined to give Trump a ton of time beyond what was left then. That's her baseline.
Read 11 tweets
Aug 7
JUST IN: Epic benchslapping of TX Atty General's office by USDJ David Ezra at hearing he called to chastise them for an unusual letter they sent to 5th Cir. Tuesday suggesting he was insubordinate. Starts p. 44 of PDF storage.courtlistener.com/recap/gov.usco…
Samples:


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He's not done yet


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Read 5 tweets
Mar 29, 2023
For 2nd day in a row, GOP lawmakers hit Garland for proposing only 4 new DEA agents as Fentanyl deaths surge. But AG says real no. is 131, counting agents OK'd this year but not yet hired. Garland: 'The budget math and the actual math doesn’t always add up.'
Democrats are pointing out that across-the-board cuts GOP would impose government-wide as part of debt limit extension would actually slash spending by about 22%. Garland says: 'It would be devastating for our efforts to combat drug trafficking. Totally devastating.'
Garland says that would lead to 11,000 jobs at FBI being eliminated.
Read 12 tweets
Mar 24, 2023
ON STAND NOW at Proud Boys trial as defense witness: S. Fla. rabbi Former Proud Boy George Meza. Meza on his exit: 'We in some way turned on each other and I was voted out of the club.' But generally presenting a flattering view of Proud Boys & their ideology
Meza says Proud Boys rules barred those 'currently identified' as white nationalists. They're kicked out 'or they're supposed to be,' he says
More Meza: 'The average minority, the average foreigner felt very comfortable around the proud boys because we put our lives in danger to protect them.'
Read 19 tweets
Mar 1, 2023
At least 5 Republican senators here at SJC hearing seeking second round of Qs for Garland. Earlier: politi.co/3SBmBmw via @politico
@politico Sen. Lee on 702: 'Not a chance in hell we’re going to be reauthorizing that thing without some major major reforms.'
Sen. Cruz deplores leaks about Hunter Biden (you read that right), says it was to make a future Trump indictment seem legit
Read 4 tweets

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