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Publishing, Monster-Truck-Race Style

John Bolton speaking at the 2018 Conservative Political Action Conference.
John Bolton, photo by Gage Skidmore

Depending on your views of John Bolton and Donald Trump, Bolton’s monster-truck-race approach to putting out his new book was necessary either to prevent the country from making its next big mistake or to cash in on its last one.

Granted, these two motives are not mutually exclusive. Further granted, if you do not believe putting Trump in the White House or keeping him there is a mistake at all, nothing in Bolton’s opus is apt to change your mind. You can test that theory by whipping out your credit card or e-reader. “The Room Where It Happened” was due to go on sale this morning after the sort of prerelease publicity that is every publisher’s dream.

Hold that thought – we will soon return our attention to the publisher, Simon & Schuster. It is possible that the only lasting impact from Bolton’s literary effort will be on the publishing industry’s custom of writing big checks to prominent former officials in exchange for manuscripts that offer juicy (and invariably self-serving) sketches of life inside Washington’s power cliques.

Otherwise, Bolton’s memoir may not accomplish anything at all. It is hard to see how it can have much effect on the November election. The book reportedly says little about the president personally that someone or other has not said on a daily basis for the past five years. There is also an excellent chance that Bolton’s literary efforts will have little effect on his own bank account. He may not get to keep a dime of his advance or future royalties.

U.S. District Judge Royce Lamberth last week denied the government’s effort to block the release of Bolton’s book. The judge found that Bolton probably breached the contract he signed when he became Trump’s national security adviser by failing to complete the government’s review process for removing classified material. After hearing the government’s detailed presentation behind closed doors, Lamberth also agreed that the manuscript actually contains classified material. This exposes Bolton to a serious risk of having to forfeit all financial gain from his book, and a lesser but nonzero risk of criminal prosecution.

But the judge declined to enjoin publication. This was in keeping with a long line of case law that begins with a Minnesota scandal sheet of the 1930s. It continued with the Pentagon Papers cases of 1971, a Nebraska criminal case in 1976, and an inconclusive effort that the government made in 1979 – but later dropped – to stop a magazine from publishing an article describing nuclear weapons secrets, even though the article drew all its information from public, unclassified sources.

Lamberth did not pay too much attention to these First Amendment cases. There was no need. Bolton’s unreleased book already had wider circulation in the Washington press corps than any anti-Trump screed since the Steele dossier. A reporter for CBS actually brought a copy to the White House briefing room. Simon & Schuster’s chief, John Karp, told the judge that the publisher had already shipped more than 200,000 copies to American bookstores and thousands more overseas. “By the looks of it, the horse is not just out of the barn—it is out of the country,” Lamberth wrote. He added, “For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir.”

So, apart from any potential criminal charges, the case of United States of America vs. John R. Bolton becomes a breach-of-contract suit. It is not unlike the case the government pursued more than 40 years ago against former CIA officer Frank W. Snepp III, who wrote a book about the agency’s activities in South Vietnam. A lower court ordered Snepp to forfeit all profits from the book and submit future writings to the government for preapproval. Snepp won an intermediate appeal, but the Supreme Court reversed that victory and reinstated the lower court order.

Where does the publisher fit in? Nowhere, in the initial case before Lamberth. Simon & Schuster was not a party to the litigation that the Justice Department brought against Bolton, even though it was the publisher – not Bolton – that had shipped the books ahead of today’s sale date and that would have had to execute any recall order.

It is a reasonable guess that Justice Department lawyers chose to leave the publisher out of the case to avoid turning it into a First Amendment battle, which the government would have been likely to lose. The case against Snepp established that First Amendment rights do not apply in a breach-of-contract situation. The publisher, unlike Bolton, had no contract with the government, so it could not breach one.

But Simon & Schuster – for its own financial gain – gave Bolton 2 million reasons to break his promise to the government. Could the government assert that the publisher induced Bolton to do so, and thus caused financial injury to the taxpayers, who now have to repair any damage Bolton did to the national security? Such “tortious interference” with contracts has a long history in the law, primarily in business contexts where its application is widespread but somewhat controversial. The concept of liability for interfering in a relationship between two parties applies in other contexts too. A North Carolina man won a $750,000 judgment last year against a man who had an affair with his wife. The husband cited “alienation of affection,” arguing that the man’s actions broke up an otherwise happy marriage.

Could Simon & Schuster be liable to the government for costs that potentially far exceed whatever it paid Bolton or might gain in profit from his book? It seems conceivable. The Justice Department would likely need to argue that there is a difference between a news outlet like The New York Times agreeing to publish the Pentagon Papers – a then-classified history of American involvement in Vietnam – and a publisher agreeing to publish the unvetted recollections of an individual who was privy to the nation’s most sensitive secrets just weeks earlier. This might have been an easier argument to make a half-century ago. Back then, reputable newsrooms prided themselves on a strict separation from the “business side” of their publications. Today, journalists’ value is measured largely by the clicks they generate and the social media followers and engagement they secure, so the distinction is – to be polite – less clear.

While Bolton was going through the governmental review process on his manuscript (before, in the judge’s words, pulling the plug on it), Simon & Schuster itself was put up for sale by its corporate owner, ViacomCBS. (Huh – a CBS reporter somehow then managed to get a prepublication copy of the book. Does anyone sense corporate synergy here?) Back in March, when ViacomCBS announced the plan to sell the publisher, Bolton’s forthcoming book probably seemed like a feature for potential buyers. Now it looks more like a bug.

Depending on what happens next, things may turn out rather badly for Bolton, for the publisher, or for both. They may also turn out badly for Trump in November, of course. But I doubt Bolton will have had much to do with that result if it happens.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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