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DOJ drops John Bolton pre-publication review lawsuit

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  1. Prior Restraint
The Bolton suit, which RCFP called "flatly unconstitutional," was one of the more extraordinary moves by the DOJ under former President Trump.

In a one-sentence filing on Wednesday, the U.S. Department of Justice agreed to dismiss its civil case against former National Security Adviser John Bolton seeking to seize the proceeds of his memoir, “The Room Where It Happened,” for alleged violations of Bolton’s agreements to submit publications to the government in advance to ensure they do not contain classified information.

Bolton’s case was one of the more extraordinary moves by the Justice Department under former President Donald Trump. The DOJ not only sought an emergency injunction to block Bolton from publishing the book, it asked Judge Royce Lamberth of the U.S. District Court for the District of Columbia to extend the injunction to the publisher and any downstream bookseller — a “flatly unconstitutional” prior restraint that threatened to suppress the free flow of information to the public, the Reporters Committee argued in a friend-of-the-court brief last June.

Further, the government did so without naming Simon & Schuster and the booksellers as parties in the case, which had the effect of limiting their ability to respond to the government’s request, and would have clearly triggered review under the Pentagon Papers case.

According to the Washington Post, Bolton’s attorney said the Justice Department had notified counsel that “it was closing all aspects of [Bolton’s] case.” Politico reported that the department had also closed a related criminal investigation.

That investigation could have presented noteworthy legal issues around the use of the Espionage Act to punish public disclosures of allegedly classified information, as the director of the National Security Agency submitted a declaration in the civil case saying that information in the book “implicates” signals intelligence, which is covered under a provision of the Espionage Act, section 798, that specifically references when an individual “publishes” that information.

The dismissal, which is with prejudice (meaning that the DOJ cannot bring the case again in the future), is particularly notable given that the move to enjoin the non-party publisher and booksellers was a massively aggressive request by government attorneys, one that almost certainly would have ended up before the Supreme Court had Judge Lamberth not held, “For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir.”

It’s also doubly significant given that Judge Lamberth found at the prior restraint stage that “Bolton’s unilateral conduct raises grave national security concerns” even if “the government has not established that an injunction is the appropriate remedy.”

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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