John Bolton and America's Official Secrets Problem

Bolton’s lawyers countered that their client had already undergone an extensive redaction process with the government to remove any secrets from the manuscript. That is what the law requires of former US government officials who handled state secrets before publishing books and other documents. Bolton’s counsel further argued that the government had dragged its feet in giving final approval for political reasons.

Judge Royce Lamberth of the DC District Court thought there was something to the government’s case and that Bolton had “likely published classified materials”. But he explained that it was too late for an injunction because the “horse is already out of the barn”, and there was no way to corral those probable state secrets. Hundreds of thousands of books had already shipped to booksellers around the world.

Still, Lamberth telegraphed Bolton’s ongoing problems with the second Trump administration by writing that Bolton had “exposed his country to harm and himself to civil (and potentially criminal) liability”.

In his tentative plea deal with the Justice Department, Bolton makes no admission of guilt that he published state secrets. Rather, the government insists that he shared notes and drafts of the book with many people and in an unguarded way that was open to hacking by foreign governments and other actors. Bolton is willing to cop to that infraction to avoid worse charges.

Technically, the charge that Bolton is agreeing to is illegal retention of classified information. He could get jail time, but that is uncertain. Legal commentator Andrew McCarthy is a former federal prosecutor who tried the original 1993 World Trade Center bombers. He points out that, though it is a felony, there is no minimum sentence for this crime.

It Is Not Just Bolton

Bolton is far from the only high-ranking government official to have been tripped up by charges that they mishandled classified information in recent years. Similar allegations were leveled, with evidence, against Presidents Trump and Biden, former Secretary of State Hillary Clinton, retired general David Petraeus and former National Security Advisor Sandy Berger.

Petraeus retained briefing books in hard copy form when he was running military operations in Afghanistan. He supplied some of the books to his biographer, with whom he was also having an affair. After much wrangling, he was allowed to plead guilty to one misdemeanor charge and got probation and a $100,000 fine.

Trump and Biden both kept and improperly stored classified documents from their time in the White House, from Trump’s presidency and Biden’s vice presidency. In both cases, the government assigned prosecutors who did not take things all the way.

Special Counsel Robert Hur did not prosecute Biden because he appeared to be an “elderly man with a poor memory”, Hur explained in a memo laying out his decision. The special counsel did not believe a jury would convict. By the time a trial happened, Biden would be “a former president who will be at least well into his eighties”, and jurors would be unlikely to find him guilty of a “serious felony that requires a mental state of willfulness”.

The case against Trump for holding onto classified documents became moot when Judge Aileen Cannon disqualified Special Counsel Jack Smith on the technicality that not all the conditions in law had been properly met for the Biden administration to appoint a special counsel in the first place. She also barred the Justice Department from releasing Smith’s report.

Bolton and Over-Classification

The US Constitution mentions secrecy only once. America did not have robust official secrets laws until the great wars of the twentieth century and the Cold War.

The late New York Senator Daniel Patrick Moynihan argued at book length that the US government should scale its secrecy apparatus back with the fall of the Soviet Union. Though his suggestions were widely praised at the time, that reform did not occur.

Now, intelligence analysts frequently talk about the problem of “over-classification”. A huge swath of information has been rendered secret for reasons that are not always clear-cut.

One result of the vast classification of government information is that it is reasonably easy for former officials to get tripped up by official secrecy laws. A lot of political theater surrounds these violations. Yet inadvertent violators have usually gotten what amounted to a slap on the wrist, at most.

The Bolton case could mark a sea change in how secrecy laws are handled. It is possible that high-ranking officials will pay a steeper price for violating official secrets laws going forward – or that his penalty will cause them to recoil and make some changes.