What will #Bolton's respond to the injunction motion be? I'm no expert, but I'd bet:
1) mootness - he's already given the book to the publisher and it's already been distributed, so no injunction targeting him alone would be effective
2) failure to name a necessary party -
1) mootness - he's already given the book to the publisher and it's already been distributed, so no injunction targeting him alone would be effective
2) failure to name a necessary party -
Due to point 1,the *real* target of the request for injunctive relief is the publisher and bookstores, who weren't named, on the government's "you can bind third parties" argument. But this isn't incidental, it's the whole point. They need to be named.
3} 1st Amendment...
3} 1st Amendment...
The government argues it doesn't need to worry about the 1st Amendment cases on prior restraint because #Bolton signed an NDA. But none of the third parties they're *really* trying to enjoin did.
The government shouldn't be permitted to end-run the First Amendment rights of non parties guy playing a procedural game of refusing to name them as parties
4) likelihood of success on the merits. And here is where Trump really screwed his administration's case...
4) likelihood of success on the merits. And here is where Trump really screwed his administration's case...
The government needs to show a likelihood of success on the merits, meaning that the court is likely to find, after it hears the whole case, that the government will win . That's a standard rule for injunctions. The nda's that #Bolton signed are contracts and the government's
argument is straightforward: these are contracts, they are enforceable, and this is a clear breach, therefore we are likely to come in once the whole case gets heard.
But Bolton actually has a strong response available to him:
But Bolton actually has a strong response available to him:
The law implies in every contract a duty of good faith and fair dealing. Basically, a contracting party is not allowed to use its discretion abusively, to screw over the other side. #Bolton will argue that the government is breaching that duty to protect trump politically. He'll
point to the fact that the staffer who usually handles the reviews did an extensive review and gave the all clear, and especially to Trump's latest statement that he considers any conversation with him to be classified....
Those two facts, taken together and added to the obvious political harm to Trump from this book, ring is real questions on the duty of good faith and fair dealing, enough to make likelihood of success less strong.
5) The public interest.
5) The public interest.
The final factor in injunctive relief, and the easiest to attack here. Balanced against the government's interest in protecting purportedly classified information (not known to Knight to be classified) is the public's interest in disclosure & the
First Amendment rights of the third parties. The public's interest in disclosure is particularly acute when the topic is a book critical of the president and an election is coming in 5 months
I think those will be the major themes. I'm sure there will be some other arguments baked in there, and again, this isn't my specific area of practice. But it's what I would expect
