Washington, D.C., September 24, 2020 - When White House lawyers tried to block publication of former National Security Adviser John Bolton’s book, The Room Where it Happened, a National Security Council classification specialist confronted them, suggesting they were only intervening "because the most powerful man in the world said that it needed to happen," according to a revealing court filing this week in the continuing saga of the Bolton book. The court document asserts that in response, "several [attorneys] registered their agreement with that diagnosis of the situation.”
Today, the National Security Archive is posting the filing along with key court records relating to the underlying case of United States of America v. John R. Bolton.
The filing, which was submitted on behalf of former NSC official Ellen Knight, who spent four months earlier this year rigorously reviewing the manuscript for publication, describes in detail how her professional determination that the book no longer contained classified information was overruled by a subsequent, secret review conducted by a Trump political appointee with no experience with the prepublication review process.
Knight’s filing, by the law firm Davis Polk & Wardwell, is both an effort to defend the work conducted by her team on the Bolton book in particular and to warn of the dangers of politicizing the review process in general, which could encourage more former government officials to circumvent it entirely.
The filing contains several extraordinary revelations, including that Ms. Knight was regularly instructed by NSC’s Legal Advisor “not to use email in her communications with NSC Legal about her interactions” with Ambassador Bolton and his lawyer, and to instead use a telephone. Such a move would make it difficult for discussions to be obtained during the discovery phase of a lawsuit.
The most revelatory passages, however, concern what happened after Ms. Knight and her team completed their review of Bolton’s book in late April this year. At this juncture, NSC Legal would typically issue a clearance letter, OK-ing the manuscript for publication. When none came for Bolton’s book, Ms. Knight was informed that the delay was due to the team’s focus on the COVID-19 crisis.
This was not true. The delay was caused, as Ms. Knight later learned, by a secret second review of the manuscript. According to the filing, National Security Advisor Robert O’Brien “instructed Michael Ellis, an NSC political appointee with no previous classification authority experience, to conduct another review. Between May 2 and June 9, Mr. Ellis reviewed the manuscript and flagged hundreds of passages that, in his opinion, were still classified.”
The second review was fundamentally flawed, however, because it was a classification review, not a proper prepublication review. The distinction between the two is significant.
A prepublication review is a lengthy process that involves “reading the draft text to identify information that may be sensitive and then carefully researching the press and public record for any government releases, statements, reports, testimony or presidential tweets that may have officially disclosed that information, thereby meaning that it is no longer sensitive or classified in the context of prepublication review. It often happens that a prepublication reviewer flags what was at one time highly-protected sensitive information, only to learn that that information has been otherwise released through official channels and is now a matter of public knowledge.” This is the process the Intelligence Community established decades ago and has used to clear hundreds of books by former officials for publication.
A classification review, by contrast, simply “entails reviewing a government employee's written work, identifying potentially sensitive topics or facts in the substance of that work, determining if that information is specified in a classification guide, applying the appropriate markings,” all without taking into consideration what information is already public knowledge or in the public interest to release.
The Knight filing further notes that none of the political appointees “ever raised these classification concerns with Ms. Knight and her team or sought to learn about their analysis of the concerning passages. Had their concern been to produce a publishable manuscript without classified information, they presumably would have asked the experts who had devoted hundreds of person-hours to do a painstaking review of every page of the manuscript.”
The filing also shows how Department of Justice attorneys and the White House Office of Legal Counsel repeatedly attempted to harass Ms. Knight into agreeing with their findings that the vetted manuscript still contained properly classified information. Beginning with a June 10 meeting at the White House Situation Room, and through subsequent meetings at the Department of Justice and with White House Counsel in the West Wing, administration officials first attempted to get Ms. Knight to concede that Mr. Ellis’s radically different findings could be attributed to a difference of opinion rather than Mr. Ellis’s fundamental misunderstanding of the classification issues at play, and, failing that, asked her to sign a draft declaration for their lawsuit against Ambassador Bolton. Ms. Knight declined to sign the declaration, which, among other things, suggested that her team’s work was inadequate and “glossed over the irregular aspects of the prepublication review”.
The situation so concerned Ms. Knight that she “asked the attorneys how it could be appropriate that a designedly apolitical process had been commandeered by political appointees for a seemingly political purpose. She asked them to explain why they were so insistent on pursuing litigation rather than resolving the potential national security issues through engagement with Ambassador Bolton and her team. The attorneys had no answer for her challenges, aside from a rote recitation of the government’s legal position that Ambassador Bolton had violated his contractual obligations by failing to wait for written clearance. However, when Ms. Knight speculated that this litigation was happening ‘because the most powerful man in the world said that it needed to happen,’ several registered their agreement with that diagnosis of the situation.”
The Justice Department remains committed to pursuing its case that Ambassador Bolton’s book contains classified information. On September 15 it opened a criminal investigation into whether Bolton disclosed national security information in his book.
Read the documents
Letter submitted by David Polk on behalf of Ellen Knight
September 22, 2020
Ellen Knight, 17-page list of edits for Ambassador Bolton
March 27, 2020
Declaration of Michael J. Ellis
June 17, 2020
Declaration of Paul M. Nakasone
June 20, 2020