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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN R. BOLTON,
Defendant.

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Civil Action No. 20-1580 (RCL)

EMERGENCY APPLICATION FOR TEMPORARY RESTRAINING ORDER
AND MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65, Plaintiff, the United States of America, by
and through its attorneys, respectfully files this Emergency Application for Temporary Restraining
Order and Motion for Preliminary Injunction (“Application”) against Defendant John R. Bolton
seeking to enjoin publication of a book containing classified information. Prior to filing this
Application, and consistent with Local Civil Rule 65.1(a), the United States contacted counsel for
Mr. Bolton, provided him notice that the United States would be filing this Application today, and
sent him copies of all papers submitted with the United States’ complaint in this action and the
materials submitted herewith (except for the classified declarations noted below).

The United

States understands the Mr. Bolton opposes the relief sought by this Application.
The United States respectfully requests that the Court schedule a hearing on this
Application at the Court’s earliest convenience on Friday, June 19, 2020, because Mr. Bolton’s
book is scheduled to be released on Tuesday, June 23, 2020.
In support of this Application, Plaintiff refers the Court to (1) the Complaint and relevant
attachments thereto; (2) Plaintiff’s Memorandum of Law In Support of Its Application for
Temporary Restraining Order and Preliminary Injunction, attached to this Application; (3) the

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unclassified declarations attached to this Application; and (4) the classified declarations of Michael
Ellis and William R. Evanina, which have been lodged with the Court ex parte for purposes of in
camera review. A proposed order is attached for the Court’s consideration.
Dated: June 17, 2020

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
MICHAEL SHERWIN
Acting United States Attorney
ETHAN P. DAVIS
Principal Deputy Assistant Attorney General
DAVID M. MORRELL
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director
Federal Programs Branch
/s/ Daniel F. Van Horn
Daniel F. Van Horn (D.C. Bar. No. 924092)
Assistant United States Attorney
555 Fourth Street N.W., Room E4226,
Washington, D.C. 20530
Tel: 202-252-2506
Email: daniel.vanhorn@usdoj.gov
/s/ Michael J. Gerardi
Michael J. Gerardi (D.C. Bar No. 1017949)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Room 11514
Washington, D.C. 20005
Tel: (202) 616-0680
Fax: (202) 616-8460
E-mail: michael.j.gerardi@usdoj.gov
Counsel for Plaintiff

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN R. BOLTON,
Defendant.

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Civil Action No. 20-1580 (RCL)

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES’ APPLICATION
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION…………………………………………………………….……..……………1
FACTUAL BACKGROUND…………….………………………………………..….…………..1
A. Defendant Assumed Statutory and Contractual Obligations Not to Disclose
Classified Information, to Submit Manuscripts for Prepublication Review,
and to Abide by the Results of Such Review…………………………………….……2
B. Defendant Wrote a Book Subject to Prepublication Review, Submitted it for
Prepublication Review, and Did Not Receive Written Authorization to Publish
the Book, which Continues to Contain Classified Information……………………….4
C. Without Written Authorization and Without Notice, Defendant Submitted His
Book to Simon & Schuster For Publication Containing Classified Material……...….6
LEGAL STANDARD…………….………………………………………………..….…………..8
ARGUMENT……………………..………….……………………………………..….………….9
I.

The Government Is Likely to Succeed on the Merits…………………………………9
A. By Publishing Classification Information Without Written Approval After
Completion Of Prepublication Review, Defendant Has Breached His Secrecy
Obligations To the Federal Government………………………………………. 10
1. Defendant Breached His SF 4414 Agreement by Walking
Away From the Pre-Publication Process Before It Was Complete..…12
2. Defendant Breached His SF 312 Agreement by Disclosing
Classified Information Without Prior Approval……………………..14
B. Courts Consistently Have Upheld, Over First Amendment Objections,
the Government’s Right to Enforce Secrecy Agreements Like Those
Defendant Signed…………………………………...……………………………15
C. Defendant Lacks Any Valid Defenses, Contractual or Otherwise, to
Enforcement of His Secrecy Obligations……………………………………...…19

II.

The United States Will Be Irreparably Harmed Without an Injunction……..………23

III.

The Balance of the Equities and the Public Interest Factors Also Weigh in
Favor of an Injunction……………….………………………………………………25

IV.

The Injunction Should Provide Full Relief to the United States………...…………..27

CONCLUSION…………………………………………………………………………………..30
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TABLE OF AUTHORITIES
Cases
Aevoe Corp. v. AE Tech Co., 727 F.3d 1375 (Fed. Cir. 2013) ............................................... 28, 29
Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975 ...................................................... 18
Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986) ............................................................... 28
Armenian Assembly of America v. Cafesjian, 692 F. Supp. 2d 20 (D.D.C. 2010) ....................... 10
Bartnicki v. Vopper, 532 U.S. 514 (2001 ..................................................................................... 28
Branzburg v. Hayes, 408 U.S. 665 (1972) .................................................................................... 28
Davis v. PBGC, 571 F.3d 1288 (D.C. Cir. 2009) ........................................................................... 8
Dep’t of Health & Human Servs. v. Alley, 556 U.S. 1149 (2009) ................................................ 24
Dep’t of Navy v. Egan, 484 U.S. 518 (1988) ................................................................................ 12
Edgar v. Coats, No. GJH-19-985, 2020 WL 1890509 (D. Md. Apr. 16, 2020) ........................... 22
Elec. Privacy Info. Ctr. v. FTC, 844 F. Supp. 2d 98 (D.D.C. 2012) .............................................. 8
Fox TV Stations, Inc. v. FilmOn X LLC, 966 F. Supp. 2d 30 (D.D.C. 2013) ................................. 8
In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013).................................................................. 8
In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998)........................................................................ 23
John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989) ....................................................... 23
Johnson v. Zerbst, 304 U.S. 458 (1938). ...................................................................................... 21
Marshak v. Treadwell, 595 F.3d 478 (3d Cir. 2009) .................................................................... 28
*McGehee v. Casey,718 F.2d 1137 (D.C. Cir. 1983). ...................................................... 18, 20, 22
Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67 (D.D.C. 2001))......................................... 8
New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) ............................ 18
Nken v. Holder, 556 U.S. 418 (2009). .......................................................................................... 25

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People for the Am. Way Found. v. U.S. Dep’t of Educ., 518 F. Supp. 2d 174 (D.D.C. 2007) ..... 24
Providence Journal v. FBI, 595 F.2d 889 (1st Cir. 1979) ...................................................... 23, 24
Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) ................................................................... 28
Savarese v. Agriss, 883 F.2d 1194 (3d Cir. 1989) ........................................................................ 27
Singh v. Carter, 185 F. Supp. 3d 11 (D.D.C. 2016) ....................................................................... 8
*Snepp v. United States, 444 U.S. 507 (1980) ....................................................................... passim
Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003) ............................................................... 15, 18, 21
Stillman v. CIA, 517 F. Supp. 2d 32 (D.D.C. 2007) ..................................................................... 17
U.S. Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133 (D.D.C. 2015)...................... 25
United States v. Aguilar, 515 U.S. 593 (1995) ............................................................................. 16
United States v. Bin Laden, 58 F. Supp. 2d 113, 122 (S.D.N.Y. 1999) ........................................ 25
United States v. Hashmi, 621 F. Supp. 2d 76 (S.D.N.Y. 2008) .................................................... 25
*United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), ................................................ passim
United States v. Pappas, 94 F.3d 795 (2d Cir.1996) .................................................................... 15
United States v. Ring, 628 F. Supp. 2d 195 (D.D.C. 2009) .......................................................... 10
United States v. Silvano, 812 F.2d 754 (1st Cir.1987) .................................................................. 10
United States v. Snepp, 897 F.2d 138 (4th Cir. 1990) ............................................................ 17, 22
Veit & Co. v. United States, 46 Fed. Cl. 30, (2003) ...................................................................... 22
Wilson v. C.I.A., 586 F.3d 171 (2d Cir. 2009) .................................................................. 15, 20, 21
Winter v. NRDC, Inc., 555 U.S. 7 (2008). ................................................................................ 8, 26
Constitutional Provisions
U.S. Const., Art. II, § 2 ................................................................................................................. 12

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Rules
Federal Rule of Civil Procedure 65(d)(2), .................................................................................... 27
Other Authorities
Executive Order 13526 ................................................................................................................... 4
Intelligence Community Directive 703 (June 21, 2013),
https://www.dni.gov/files/documents/ICD/ICD%20703.pdf...................................................... 2
John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The
Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edward-snowden-leaksgrave-threat (June 18, 2013). .................................................................................................... 25

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INTRODUCTION
A National Security Advisor to a sitting President possesses national security information
like few others. Were such a person to offer such information for sale to foreign governments, all
would readily acknowledge the wrongdoing involved. That is why, when similar risks occur from
the proposed dissemination of books, such individuals are required by contractual and fiduciary
obligations to submit their manuscripts for prepublication review and not to publish them without
having received written approval to do so. In this case, defendant John Bolton has not received
any such approval, but unilaterally has decided to abandon the prepublication review process that
he agreed to and instead plans to disseminate classified information as he sees fit in order to profit
from his book. To be clear: Defendant’s manuscript still contains classified information, as
confirmed by some of the Government’s most senior national-security and intelligence officials—
the Director of National Intelligence, the Director of the National Security Agency (“NSA”), the
Director of the National Counterintelligence and Security Center, and the National Security
Counsel’s (“NSC’s”) Senior Director for Intelligence Programs. Disclosure of the manuscript will
damage the national security of the United States. The United States asks this Court to hold
Defendant to the legal obligations he freely assumed as a condition of receiving access to classified
information and prevent the harm to national security that will result if his manuscript is published
to the world.
FACTUAL BACKGROUND
Defendant is an experienced public official, with nearly four decades of service in positions
of public trust in the United States Government. He is an attorney, having graduated from Yale
Law School, who previously served as, among other things, General Counsel and Assistant
Administrator for the U.S. Agency for International Development; Assistant Attorney General at

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the Department of Justice; Assistant Secretary and Under Secretary at the Department of State;
and as U.S. Ambassador to the United Nations. This case arises out of Defendant’s most recent
service—his appointment by the President as National Security Advisor on April 9, 2018, and his
voluntary acceptance of that appointment. Compl. ¶ 9. As National Security Advisor, Defendant
directed and supervised the work of the National Security Council staff on behalf of the President.
Defendant knew he would be privy to and responsible for safeguarding the Nation’s most sensitive
national-security matters, and that his responsibilities would entail access to sensitive classified
materials of the highest order. Compl. ¶ 21. The President entrusted this position to Defendant
and gave him access to classified information so that he could serve the Nation and carry out his
responsibilities as National Security Advisor.
A.

Defendant Assumed Statutory and Contractual Obligations Not to Disclose
Classified Information, to Submit Manuscripts for Prepublication Review, and to
Abide by the Results of Such Review.
When he assumed the role of National Security Advisor, and in consideration for his

appointment and access to classified information, Defendant entered into a series of agreements
setting forth binding nondisclosure and prepublication review obligations. In particular, he
executed a Classified Information Nondisclosure Agreement, titled Standard Form 312 (“SF 312”),
and two Sensitive Compartmented Information (“SCI”) Nondisclosure Agreements, 1 each titled
Standard Form 4414 (“Form 4414”). 2 By signing the SF 312, Defendant acknowledged that “the
unauthorized disclosure . . . of classified information by me could cause damage or irreparable

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SCI is “[a] subset of [Classified National Intelligence] concerning or derived from
intelligence sources, methods or analytical processes that is required to be protected within formal
access control systems established by the [Director of National Intelligence].” Intelligence
Community Directive 703 (June 21, 2013), https://www.dni.gov/files/documents/ICD/
ICD%20703.pdf
2

These agreements between Defendant and the United States are included in Exhibit A to
the Declaration of Matthias Mitman (“Mitman Decl.”).
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injury to the United States” and agreed “never [to] divulge classified information” without “prior
written notice of authorization from” the relevant government agency. SF 312 ¶ 3. By signing the
Form 4414, he similarly promised “never [to] divulge anything marked as SCI or that I know to
be SCI to anyone who is not authorized to receive it without prior written authorization.” Form
4414 ¶ 3. In both agreements, Defendant acknowledged the disclosure of classified information
“may constitute a violation, or violations, of United States criminal laws.” SF 312 ¶ 4; Form 4414
¶ 6. He further agreed that he would “submit for security review . . . any writing or other
preparation in any form . . . that contains or purports to contain any SCI or description of activities
that produce or relate to SCI or that I have reason to believe are derived from SCI, that I
contemplate disclosing to any person not authorized to have access to SCI or that I have prepared
for public disclosure.”

Form 4414 ¶ 4.

Defendant also committed “to make any required

submissions prior to discussing the preparation with, or showing it to, anyone who is not authorized
to have access to SCI,” and “not [to] disclose the contents of such preparation with, or show it to,
anyone who is not authorized to have access to SCI until I have received written authorization[.]”
Id.

In the event Defendant was “uncertain about the classification status of information,”

Defendant agreed that he would be “required to confirm from an authorized official that the
information is unclassified before [he could] disclose it” to an unauthorized recipient. SF 312 ¶ 3.
These obligations were reinforced in multiple post-employment memoranda. Mitman Decl., Exh.
B, Memo. From S. Gast to J. Bolton, Sept. 13, 2019; Exh. C, Letter from J. Eisenberg to J. Bolton,
Sept. 10, 2019.
When a former NSC employee, like Defendant, submits a manuscript for prepublication
review pursuant to these obligations, the proposed publication is reviewed by the Records Access
and Information Security Management Directorate at NSC. Compl. ¶ 25. NSC staff reviews the

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submitted written work, requests removal of any classified information (or suggests edits to make
otherwise classified language unclassified), and concludes the process by providing written
authorization for the former employee to disseminate the revised materials once all classified
information has been removed. Compl. ¶¶ 26-28. NSC staff may also work with the former
employee on an iterative basis to ensure the final product is free of classified information. Compl.
¶ 27. The duration of the review can depend on many factors, such as the length of the written
work, the amount of classified information, the sensitivity of classified information included, and
how recent the information might be. Compl. ¶ 26.
B.

Defendant Wrote a Book Subject to Prepublication Review, Submitted it for
Prepublication Review, and Did Not Receive Written Authorization to Publish the
Book, which Continues to Contain Classified Information.
Defendant’s service as National Security Advisor concluded on September 10, 2019.

Compl. ¶ 9. By November 9, 2019, Defendant had a book deal with publisher Simon & Schuster
for the rights to a memoir of his time in the White House. Compl. ¶ 23. Public reports suggest
that Defendant received approximately $2 million in the deal. Id. By late January 2020,
Defendant’s book was being marketed for pre-sale under the title The Room Where It Happened,
Compl. ¶ 34—in apparent reference to the song, “The Room Where It Happens,” from the hit
Broadway musical Hamilton. At the same time, the New York Times published an article that
purported to describe the contents of Defendant’s manuscript. See Compl. ¶ 35.
Four weeks before this media surge, on December 30, 2019, counsel for Defendant initiated
the prepublication review process by submitting a hard copy of Defendant’s manuscript to Ellen
Knight, the Senior Director for Records Access and Information Security Management Directorate
at the NSC. Mitman Decl., Exh. D, Letter from C. Cooper to E. Knight, Dec. 30, 2019. Ms. Knight
is an Original Classification Authority, meaning she is “authorized to classify information in the
first instance.” Executive Order 13,526, § 6.1(gg). After conducting an initial review of the
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manuscript, on January 23, 2020, Ms. Knight informed Defendant, through his counsel, that the
manuscript “appears to contain significant amounts of classified information,” including
information classified at the Top Secret level. Mitman Decl., Exh. E, Letter from E. Knight to C.
Cooper, Jan. 23, 2020. Ms. Knight thus instructed Defendant that his manuscript “may not be
published or otherwise disclosed without the deletion of this classified information.” Id.
Over the next few months, Ms. Knight worked with Defendant to review his manuscript
and to excise classified information. See Compl. ¶¶ 32-46. On multiple occasions, Defendant was
told that he would need final written approval before he could proceed with publication. 3 By April
27, Ms. Knight had completed her review and was of the view that the manuscript draft did not
contain classified information. Compl. ¶ 46; Unclassified Declaration of Michael Ellis (“Ellis
Decl.”) ¶ 9. Ms. Knight did not, however, provide Defendant with written authorization to proceed
with publishing the manuscript. See Ellis Decl. ¶ 13. To the contrary, on May 7, 2020, Ms. Knight
informed Defendant that “[t]he process remains ongoing” and that her staff would “reach out as
soon as there is an update to provide.” Mitman Decl., Exh. I, E-mail from E. Knight to J. Bolton,
May 7, 2020. This was Ms. Knight’s last communication with Defendant.
In the meantime, after Ms. Knight’s review of the draft manuscript, the Assistant to the
President for National Security Affairs (“APNSA”) reviewed the manuscript and concluded that it
still appeared to contain classified information. Ellis Decl. ¶ 10. The APNSA asked the NSC’s

3

Mitman Decl., Exh. F, Letter from K. Knight to C. Cooper, Feb. 7, 2020, at 1 (“In the
meantime, your client has a duty not to publish or otherwise disclose the manuscript or any of its
underlying information until he has addressed our concerns and received authorization to do so
from our office.”); Mitman Decl., Exh. G, Letter from K. Knight to C. Cooper, Feb. 24, 2020, at 2
(“Please note that the prepublication review remains in process, and your client may not publish
or further disseminate the manuscript or any of its contents until authorized.”); Id., Exh. H, E-Mail
from K. Knight to J. Bolton, Mar. 27, 2020 (“I must reiterate that the prepublication review remains
in process. Even after making the edits, you are not authorized to publish or further disseminate
the manuscript or its contents until expressly given clearance by me to do so.”).
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Senior Director for Intelligence Programs, Michael Ellis, to conduct a further review of the
manuscript and on May 2, 2020, Mr. Ellis commenced that review. Ellis Decl. ¶¶ 10-11. Like
Ms. Knight, Mr. Ellis is an Original Classification Authority. Ellis Decl. ¶ 8. Mr. Ellis completed
his initial review of the manuscript on June 9. Ellis Decl. ¶ 12. Mr. Ellis concluded that the
manuscript contains information subject to both the Standard Form 312 and the Form 4414 signed
by Defendant, and that the revisions already made to the manuscript had not removed all classified
information, including information classified at the Confidential, Secret, Top Secret, and Top
Secret/SCI levels. Ellis Decl. ¶¶ 19, 20. In Mr. Ellis’s judgment, disclosure of certain passages in
the manuscript “will damage the national security of the United States.” Ellis Decl. ¶ 22. A
description of examples of classified information that remains in the manuscript—and the basis
for Mr. Ellis’s determination that their disclosure reasonably could be expected to cause damage
to national security—appears in the classified Declaration of Michael Ellis, which will be made
available to the Court solely for in camera, ex parte review. See Classified Decl. of Michael Ellis
(lodged ex parte with the Court).
Mr. Ellis’s conclusion is shared by other senior intelligence officials. John L. Ratcliff, the
Director of National Intelligence, has concluded “that the[] passages of the manuscript” reviewed
by Mr. Ellis “contain classified national security information” and “if made public, will damage
national security.” Decl. of John L. Ratcliff (“Ratcliff Decl.”) ¶¶ 6-7. William R. Evanina, the
Director of the National Counterintelligence and Security Center, concluded “that the information
contained in the passages I have reviewed is precisely what foreign adversaries’ intelligence
services seek to target and collect,” and “unauthorized disclosure of this information could
reasonably be expected to enable foreign threat actors to cause serious, and sometimes grave,
damage to our national and economic security.” Decl. of William R. Evanina ¶ 6; see also

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Classified Decl. of William R. Evanina (lodged ex parte with the Court). And Paul M. Nakasone,
the Director of the National Security Agency and a general in the U.S. Army, concluded that
disclosure of some of the classified information contained in the manuscript “could result in the
permanent loss of a valuable [signal intelligence] source and cause irreparable damage to the U.S.
[singal intelligence] system.” Decl. of Paul M. Nakasone (“Nakasone Decl.”) ¶ 8.
Neither Ms. Knight, nor Mr. Ellis, nor any other NSC official provided written
authorization for Defendant to proceed with publication of his manuscript. See Ellis Decl. ¶ 13.
C.

Without Written Authorization and Without Notice, Defendant Submitted His Book
to Simon & Schuster For Publication Containing Classified Material.
The Government learned through June 7, 2020 press reports that Defendant already had

submitted his manuscript for publication and that he and Simon & Schuster were “planning to
publish even if the White House does not give publication approval.” Compl. ¶ 53; Mitman Decl.,
Exh. J, Letter from J. Eisenberg to C. Cooper, June 8, 2020. On June 8, 2020, the NSC Legal
Adviser wrote to Defendant, through Defendant’s counsel, reminding him that he was not
authorized to publish his book because it contained classified material and because he had not yet
completed prepublication review. Mitman Decl., Exh. J. The NSC Legal Adviser further indicated
that the NSC would provide Defendant with a copy of Defendant’s manuscript, with redactions
for classified information, on or before June 19, 2020. Id. Two days later, on June 10, Defendant’s
counsel informed the Government that Defendant “and his publisher, Simon & Schuster, moved
forward with publication” scheduled for June 23, 2020, and that the book had already been
“printed, bound, and shipped to distributors across the country.” Compl. ¶ 55; Mitman Decl.,
Exh. K, Letter from C. Cooper to J. Eisenberg, June 10, 2020.
On June 11, 2020, the NSC Legal Advisor wrote to Defendant’s counsel, emphasizing that
“the manuscript still contains classified information, because, among other things, it includes

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information that he himself classified and designed for declassification only after the lapse of
twenty-five years.” Mitman Decl., Exh. L, Letter from J. Eisenberg to C. Cooper, June 11, 2020.
The Legal Advisor further reminded Defendant that he “remains under an obligation to stop the
dissemination of the manuscript, which still contains classified information that belongs to the
United States Government, the unauthorized disclosure of which could reasonably be expected to
cause serious damage to national security.” Id. This suit followed.
On June 16, 2020 —three days in advance of the June 19 date Mr. Eisenberg had indicated
in his June 8 letter—Mr. Ellis sent Defendant a complete marked copy of the current version of
the manuscript identifying passages that he had determined, based on his initial review, appeared
to contain classified information. He offered to meet with Defendant “to discuss the removal of
classified information from the manuscript.”
LEGAL STANDARD
“To obtain a preliminary injunction, the movant must establish that: (a) it is likely to
succeed on the merits; (b) it is likely to suffer irreparable harm in the absence of preliminary relief;
(c) the balance of equities tips in its favor; and (d) an injunction is in the public interest.” Fox TV
Stations, Inc. v. FilmOn X LLC, 966 F. Supp. 2d 30, 37 (D.D.C. 2013) (citing Winter v. NRDC,
Inc., 555 U.S. 7, 20 (2008). “The D.C. Circuit has further instructed that ‘the movant has the
burden to show that all four factors . . . weigh in favor of the injunction.’” Id. (quoting Davis v.
PBGC, 571 F.3d 1288, 1292 (D.C. Cir. 2009)). 4 “The court considers the same factors in ruling
on a motion for a temporary restraining order and a motion for preliminary injunction.” Elec.
4

The D.C. Circuit “has, in the past, followed the ‘sliding scale’ approach to evaluating
preliminary injunctions . . . . The continued viability of the sliding scale approach is highly
questionable, however, in light of the Supreme Court’s holding in Winter[.]” Singh v. Carter, 185
F. Supp. 3d 11, 16 (D.D.C. 2016) (citing In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir.
2013)); see also Davis v. PBGC, 571 F.3d 1288, 1295-96 (D.C. Cir. 2009) (Kavanaugh, J.,
concurring).
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Privacy Info. Ctr. v. FTC, 844 F. Supp. 2d 98, 101 (D.D.C. 2012) (quoting Morgan Stanley DW
Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001)).
ARGUMENT
I.

The Government Is Likely to Succeed on the Merits.
The basis for preliminary relief in this matter is straightforward: Defendant, who as

National Security Advisor enjoyed access to the most sensitive information in the Government’s
possession, has decided to publish a work containing classified information without completing
prepublication review and without receiving written authorization to publish. This action is
contrary to Defendant’s fiduciary duties toward the Government, and puts Defendant in breach of
his non-disclosure agreements. Defendant assumed the obligations in these agreements as a
condition of both obtaining his employment in one of the most sensitive and important national
security positions in the United States Government and of gaining access to the highly classified
information necessary to perform his job.

These obligations are not mere bureaucratic

contrivances; indeed, Defendant acknowledged that the “unauthorized disclosure of classified
information by me may constitute a violation, or violations, of United States criminal laws.”
SF 312 ¶ 4; see also Form 4414 ¶ 6. The criminal penalties associated with unauthorized
disclosure of classified information underscore the seriousness of the Defendant’s commitments.
See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924. Courts routinely enforce secrecy agreements
between the United States and former Government personnel who, like Defendant, have been
given access to classified information as a necessary part of their employment. The United States
is therefore likely to succeed on its request for specific performance of his contractual and fiduciary
obligations not to publish classified information without completing prepublication review and
receiving written authorization to publish.

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A.

By Publishing Classification Information Without Written Approval After
Completion Of Prepublication Review, Defendant Has Breached His Secrecy
Obligations To the Federal Government.

As one of the most senior national security officials of the United States, Compl. ¶ 7,
Defendant has a fiduciary relationship with the United States Government based on his placement
in a position of trust and special confidence. See United States v. Ring, 628 F. Supp. 2d 195, 207
(D.D.C. 2009) (recognizing that a public official acts as ‘trustee for the citizens and the State
. . . and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to them”)
(quoting United States v. Silvano, 812 F.2d 754, 759 (1st Cir.1987)); Armenian Assembly of Am.
v. Cafesjian, 692 F. Supp. 2d 20, 43 (D.D.C. 2010) (recognizing protection of proprietary
information as among fiduciary duties). The National Security Advisor to the President has unique
access to classified information based on his position atop the NSC hierarchy, his responsibility to
make recommendations to the President regarding national security and foreign policy, and his
representation of the United States in its relations with other countries. Compl. ¶ 8. In this
capacity, Defendant was entrusted with classified and SCI information that related to some of the
most sensitive matters of national security, and Defendant owes to the United States a fiduciary
duty of loyalty to protect from unauthorized disclosure classified information. This duty of loyalty
includes his duty to submit to the United States Government for review any materials subject to
his prepublication review obligations and to refrain from the dissemination of those materials or
information unless and until the United States Government completes its prepublication review
processes and affirmatively and expressly approves disclosure. See Snepp, 544 U.S. 515 n. 11.
At the heart of this case are the three confidentiality agreements Defendant executed to
protect the classified information to which he gained access as the National Security Advisor to
the President. While “the law would probably imply a secrecy agreement” where the information
involved is “highly sensitive to the conduct of foreign affairs and the national defense,” United
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States v. Marchetti, 466 F.2d 1309, 1316 (4th Cir. 1972), the duty of confidentiality undoubtedly
arises where there is an express agreement. The three agreements entered into by Defendant
included Classified Information Nondisclosure Agreement (a Standard Form 312 or SF 312), and
two SCI Nondisclosure Agreements (titled a Standard Form 4414 or Form 4414). See Compl. at
Exh. A (hereafter “NDAs”). Each of these NDAs was signed by Defendant at the White House in
connection with his duties as National Security Advisor to the President. Compl. ¶ 11. Defendant
reaffirmed his obligations when his employment as National Security Advisor ended,
acknowledging that he understood that he continued to be “prohibited from disclosing any
classified or confidential information,” and that he “may not use or disclose nonpublic
information,” including information that is “confidential or classified.” Mitman Decl., Exh. B; see
also Exh. C. Before Defendant signed this acknowledgment, the NSC Legal Advisor reminded
Defendant that his obligations included the submission for “security review [of] . . . any writing or
other material in any form that could contain classified information before” sharing that
information with anyone. Mitman Decl., Exh. B.
As Defendant’s own conduct tacitly conceded, he was obligated to undertake the
prepublication review process, and the contents of Defendant’s manuscript fall within the scope of
the NDAs. See Ellis Decl. ¶¶ 19-20. The premise of Defendant’s book is that it is a “White House
Memoir” recounting information from “The Room Where it Happened,” i.e., material obtained by
Defendant in the course of his employment as National Security Advisor, where he gained access
to highly classified national security information. Compl. ¶ 34. Defendant apparently recognized
that nothing about his position, his manuscript, his contract, or his separation from Government
service exempted him from the routine obligation imposed on Government personnel to complete
pre-publication review prior to disclosures like those Defendant seeks to make, and he initiated

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the prepublication review process.

Mitman Decl., Exh. D.

Initial review of Defendant’s

manuscript identified numerous instances of classified information in various categories—so many
instances, in fact, that a single four-hour meeting proved adequate to cover only three chapters in
detail. Mitman Decl., Exh. G. In recognition of the need to revise his manuscript to protect
classified information, Defendant then made edits and submitted revised manuscripts and pages in
both March, 2020 and April, 2020. Compl. ¶ 45; Mitman Decl., Exh. H. Even after that, however,
the draft manuscript still contains classified information, including information classified at the
Secret and Top Secret/SCI levels. Ellis Decl. ¶ 19.
All of this demonstrates that the requirement of pre-publication review applies, and in that
review, the authority to determine when review is complete rests with the Executive Branch, not
with a self-serving, unilateral judgment by Defendant to withdraw from the review process. See
Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (the protection of classified information “is
committed by law to the appropriate agency of the Executive Branch,” and “flows primarily from
[a] constitutional investment of power in the President”) (citing U.S. Const., Art. II, § 2);
Marchetti, 466 F.2d at 1317 (noting that burden is on the author, not the Government, to seek
judicial review of prepublication process). As explained below, Defendant’s decision to proceed
with publication of classified material before completion of this process violated his ongoing
contractual obligations to the Government.
1.

Defendant Breached His Form 4414 Agreement by Walking Away
From the Pre-Publication Process Before It Was Complete

Defendant’s actions to date, including his unilateral decision to proceed with publication
before receiving official authorization to do so, cannot be reconciled with the obligations imposed
by his Form 4414. Indeed, as the unclassified Ellis Declaration explains, even after making
changes to the manuscript, the latest manuscript contains information classified at the Top Secret/

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SCI level and is subject to the Form 4414 signed by Defendant. See Ellis Decl. ¶¶ 19-20. Under
that agreement, Defendant was required to “submit for security review” to the United States
Government “any writing or other preparation in any form, including a work of fiction, that
contains or purports to contain any SCI or description of activities that produce or relate to SCI or
that [he has] reason to believe are derived from SCI.” Form 4414 ¶ 4. He further agreed he “will
not disclose the contents of such preparation with, or show it to, anyone who is not authorized to
have access to SCI until [he had] received written authorization . . . that such disclosure is
permitted.” Id.
Defendant is proceeding, and already has advanced substantially, on a course that defies
his obligations to complete pre-publication review of, and obtain written approval to publish, his
manuscript. As noted, Defendant tacitly acknowledged that his manuscript must be submitted for
such review by commencing and participating in an iterative process to finalize a manuscript that
did not disclose classified information. Mitman Decl., Exh. D. Defendant then decided to walk
away from that process prior to completion, and to move forward with the printing and distribution
of his book based only on edits provided to that point by the Government but without further edits
that would be required to complete the pre-publication review, including a final, written
authorization to proceed. Mitman Decl., Exh. K. This unilateral decision to disregard the final
steps in the pre-publication review process and to publish without the required approval cannot be
reconciled with Defendant’s contractual and fiduciary duties.
Defendant’s disregard for his obligations is underscored by how abruptly he shifted from
participating in the pre-publication review process to deciding unilaterally—and without any
notice to the Government—to defy that process and to publish his book before the process was
complete. Defendant was participating in the pre-publication review process by submitting

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changes to the manuscript based on feedback from the NSC’s review. Mitman Decl., Exh. L. On
May 6, 2020—just ten days after his last submission—Defendant dispatched a follow-up inquiry
to Ms. Knight, who responded that “[t]he process remains ongoing.” Mitman Decl., Exh. I.
Defendant did not communicate further with the Government until after it had already been
reported in the press that he had decided to release the book on June 23, without completing the
review process. After the NSC Legal Advisor wrote to defendant’s counsel on June 8, Defendant
informed the NSC, through counsel, that his book had already been “printed, bound, and shipped
to distributors across the country.” Mitman Decl., Exh. K. By sharing his manuscript with his
publisher—and preparing to share it with the world—before completing prepublication review,
Defendant breached his contractual obligations to complete prepublication review.
2.

Defendant Breached His SF 312 Agreement By Disclosing Classified
Information Without Prior Approval.

Defendant has also violated his SF 312 agreement by proceeding with publication of his
book without receiving appropriate authorization. Defendant acknowledged in that agreement that
“the unauthorized disclosure . . . of classified information by me could cause damage or irreparable
injury to the United States” and agreed “never [to] divulge classified information” without “prior
written notice of authorization from” the relevant government agency. SF 312 ¶ 3. Defendant has
violated that contractual duty by proceeding with publication of his book containing classified
material without receiving written authorization. Moreover, Defendant was required “to confirm
from an authorized official that [any other] information is unclassified” before disclosing such
information whenever “[he is] uncertain about the classification status.” Id., SF 312 ¶ 3.
Defendant has disregarded these requirements. As early as January 2020, it was reported
that he had disseminated copies of his manuscript to members of the press—a manuscript Ms.
Knight later concluded was rife with classified information, and that Defendant removed from the

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manuscript at her request. Compl. ¶¶ 35-36. And even after Defendant made changes to the
manuscript, it still contains classified information, including information classified at the
Confidential, Secret, Top Secret, and Top Secret/SCI levels. See Ellis Decl. ¶ 19. This means that
in some instances disclosure reasonably could be expected to cause serious damage, or
exceptionally grave damage, to the national security of the United States.

Id.

Defendant

nevertheless decided, on his own accord, not only again to share the manuscript with his publisher
but to authorize its printing and distribution to the public. By so doing, Defendant has violated the
obligations he accepted by signing the SF 312. Publication of the book in its current state would
constitute additional unauthorized disclosures of classified information in violation of Defendant’s
SF 312 obligations.
B.

Courts Consistently Have Upheld, Over First Amendment Objections, the
Government’s Right To Enforce Secrecy Agreements Like Those Defendant
Signed

Nothing in the First Amendment prevents the United States from securing an injunction
requiring a former high-ranking official with unique access to sensitive information, such as
Defendant, to abide by the agreements he signed. It is settled law that restrictions on the
publication of classified information are judicially enforceable. Where “a government employee
signs an agreement not to disclose information properly classified pursuant to executive order, that
employee ‘simply has no first amendment right to publish’ such information.” Wilson v. CIA, 586
F.3d 171, 183 (2d Cir. 2009) (quoting Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003)). The
Government is thus “entitled to enforce its agreements to maintain the confidentiality of classified
information,” United States v. Pappas, 94 F.3d 795, 801 (2d Cir.1996), without needing to comply
with “the same stringent standards that would apply to efforts to impose restrictions on unwilling
members of the public,” United States v. Aguilar, 515 U.S. 593, 606 (1995).

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The seminal case in this area is Snepp v. United States, 444 U.S. 507 (1980), which
involved a former CIA agent who, in violation of his secrecy agreement, published a book about
CIA activities without first obtaining the Agency’s approval. After the book had been published,
the United States sued Snepp for breach of contract and breach of fiduciary duties. The
government secured not only the imposition of a constructive trust over all of Snepp’s profits
from the book, but also a forward-looking injunction against future unauthorized disclosures by
Snepp. See id. at 508. The Supreme Court affirmed both remedies. See id. at 514-16.
The Supreme Court explained that a prepublication review requirement imposed on a
government employee with access to classified information is not an unconstitutional prior
restraint. See id. at 510-11. The Court found the secrecy agreement to be a “reasonable means”
for vindicating the Government’s “compelling interest in protecting both the secrecy of
information important to our national security and the appearance of confidentiality so essential
to the effective operation of our foreign intelligence service.” Id. at 509 n.3. The Court also
concluded that “[w]hether Snepp violated his trust does not depend upon whether his book
actually contained classified information.” Id. at 511. Rather, Snepp violated that trust when he
published his book without first obtaining authorization from the CIA to do so, as required by
his secrecy agreement. “When a former agent relies on his own judgment about what information
is detrimental, he may reveal information that the CIA—with its broader understanding of what
may expose classified information and confidential sources—could have identified as harmful.”
Id. at 512. The Court held that, because Snepp “deliberately and surreptitiously violated his
obligation to submit all material for prepublication review,” id. at 511, a constructive trust over
his book’s proceeds would appropriately “require[] him to disgorge the benefits of his
faithlessness.” Id. at 515.

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Even before Snepp, the Fourth Circuit upheld the validity and enforceability of secrecy
agreements in United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972). In Marchetti, as in
Snepp and the instant case, the United States sued a former employee to enforce a secrecy
agreement; the United States sought to prevent Marchetti from publishing a book about his
intelligence experiences in the CIA. Id. at 1311. The court held that the United States could
properly require Marchetti to submit all intelligence-related materials intended for publication
for prepublication review to protect classified information. Id. at 1313-17. The court further
held that there was no First Amendment problem with the secrecy agreements, because Marchetti
could seek judicial review of any action by the CIA disapproving publication of the material.
Id.; see also United States v. Snepp, 897 F.2d 138, 143 (4th Cir. 1990) (confirming that the
burden is on the author to seek judicial review of any agency decision not to approve
publication).
Consistent with these authorities, courts regularly have upheld the validity of secrecy
agreements in the face of First Amendment challenges. In Stillman v. CIA, for example, a former
employee of the Los Alamos National Laboratories sought to publish a book about China’s
nuclear weapons program and challenged the delay on publication imposed by pre-publication
review, as well as determinations by various agencies that portions of his manuscript were
classified. See 517 F. Supp. 2d 32, 34 (D.D.C. 2007) (“Stillman II”). In rejecting Stillman’s
First Amendment challenge, this Court explained that “[c]ourts have uniformly held that current
and former government employees have no First Amendment right to publish properly classified
information to which they gain access by virtue of their employment.” Id. at 38. The D.C.
Circuit, in earlier proceedings in Stillman, had reached the same conclusion: “If the Government
classified the information properly, then Stillman simply has no first amendment right to publish

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it.” Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) (“Stillman I”) (reversing district court’s
preliminary order granting Stillman’s counsel access to the manuscript and remanding for further
proceedings). Relying on Snepp, this Court granted judgment to the Government, emphasizing
that “the government’s ability to maintain secrecy is essential and [recognizing] that the
government is in the best position to judge the harm that would result from disclosure.” Stillman
II, 517 F. Supp. 2d at 39.
Likewise, in McGehee v. Casey, a former CIA officer brought a declaratory judgment
action, before publication, challenging “an agreement that on its face bar[red] him from revealing
classified information without prior . . . approval.” This Court denied relief, and the D.C. Circuit
affirmed. 718 F.2d 1137, 1139 (D.C. Cir. 1983). The D.C. Circuit reasoned that the “classification
and censorship scheme,” including the requirement of pre-publication review, “protects critical
national interests” and “satisf[ies] the applicable constitutional tests.” Id. The court further added
that, even though the CIA officer had “adhered to his secrecy agreement[,] submitted his
manuscript for prepublication review, and deleted portions” of it in accordance with Government
instructions, he was not entitled to declassification of portions of a magazine article he published
that the CIA had determined to be classified, because affidavits gave the court “reason to believe
that disclosure of the censored portions of McGehee’s article could reasonably be expected to
cause serious damage to the national security.” Id. at 1149-50. 5
5

In dicta, the court noted that the CIA had “not sought an injunction against publication of
the censored items” and stated that if the CIA had sought “judicial action to restrain publication,
it would [have borne] a much heavier burden.” McGehee, 718 F.2d at 1147 n. 22 (citing, e.g.,
Snepp, 444 U.S. at 513 n. 8, and N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per
curiam)). But the cited language in Snepp does not support this assertion. Indeed, the cited portion
of Snepp cited to two cases, which include language that, if anything, undermines the notion that
the government would bear a heavier burden where it—rather than the author—sought relief. See
Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975) (“We decline to modify our previous
holding that the First Amendment is no[] bar against an injunction forbidding the disclosure of

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It follows from these decisions that there is no First Amendment bar to enforcement of
Defendant’s secrecy agreements here. The Government is seeking, as it has done in the past, to
enforce the terms of its NDAs regarding classified information executed by Defendant when he
joined the Government as National Security Advisor. Defendant willingly accepted the terms of
these NDAs in consideration for his access to this information, and there is no valid constitutional
objection to the Government seeking relief under their terms.
C.

Defendant Lacks Any Valid Defenses, Contractual or Otherwise, to
Enforcement of His Secrecy Obligations.

To date, Defendant has refused to accept that he is in breach of his obligations to the
Government. In a June 10, 2020 letter from his counsel, he asserts that he has substantially
complied with the prepublication review requirement and that, in light of his purported “substantial
compliance” and supposed assurances from Ms. Knight, he should be excused from the remainder
of his fiduciary and contractual obligations. Mitman Decl., Exh. K. Neither this argument, nor
any other effort to defend his about-face on pre-publication review, can justify his unilateral
decision to print and distribute copies of his book without prior written authorization.
At the outset, the express terms of the NDAs make clear that Defendant has not
“substantially compl[ied]” with his obligations by submitting his manuscript and engaging with
the Government for a time; rather, the NDAs required full compliance. Defendant is expressly
required to obtain express and “written notice of authorization” before making a disclosure of

classifiable information within the guidelines of the Executive Orders when (1) the classified
information was acquired, during the course of his employment, by an employee of a United States
agency or department in which such information is handled and (2) its disclosure would violate a
solemn agreement made by the employee at the commencement of his employment. With respect
to such information, by his execution of the secrecy agreement and his entry into the confidential
employment relationship, he effectively relinquished his First Amendment rights.”); United States
v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (granting the United States’ request for injunction
against future publication in violation of secrecy agreement).
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classified information. SF 312 ¶ 3; see also Form 4414 ¶ 4. He never received such notice. Even
though Ms. Knight had completed her review in April and was of the view that the manuscript did
not contain classified information, Compl. ¶ 46; Ellis Decl. ¶ 9, Ms. Knight did not authorize Mr.
Bolton to proceed with publication, and instead informed him that “[t]he process remain[ed]
ongoing,” Mitman Decl., Exh. I. That process involved an additional classification review by Mr.
Ellis, who concluded that the manuscript, even as revised, contained classified material, including
information classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. In other
words, as Mr. Ellis explains, the manuscript, even as revised, contains instances of information
that, if disclosed, reasonably could be expected to cause serious damage, or exceptionally grave
damage, to the national security of the United States—and, indeed, Mr. Ellis concluded that
disclosure of “certain passages in the draft manuscript … will damage the national security of the
United States.” See Ellis Decl. ¶¶ 19, 22. The conclusion that the draft still contains classified
information is shared by Mr. Ratcliffe, Mr. Evanina, and Gen. Nakasone. Ratcliffe Decl. ¶ 7;
Evanina Decl. ¶¶ 6-7; Nakasone Decl. ¶ 8. Mr. Bolton’s decision nevertheless to proceed with the
publication of a book containing such material is a breach of his contractual and fiduciary duties.
Nor does Mr. Bolton have a First Amendment right to publish classified information that
would allow him to sidestep the breach of his contractual duties. As previously discussed, the
legal obligations he freely assumed—namely, his obligation to obtain authorization before
publishing classified information—is fully in accord with constitutional requirements, as the
Supreme Court and the D.C. Circuit have confirmed. See Snepp, 444 U.S. at 509 n.3; McGehee,
718 F.2d at 1139. Where “a government employee signs an agreement not to disclose information
properly classified pursuant to executive order, that employee ‘simply has no first amendment
right to publish’ such information.” Wilson v. CIA, 586 F.3d 171, 183 (2d Cir. 2009) (quoting

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Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003)). Defendant signed three such agreements in
this case. He affirmatively agreed that he “will never divulge classified information to anyone
unless: (a) [he has] officially verified that the recipient has been properly authorized by the United
States Government to receive it; or (b) [he has] been given prior written notice of authorization
from the United States Government Department . . . that such disclosure is permitted.” SF 312
¶ 3. And he twice agreed to “submit for security review” “any writing . . . that contains or purports
to contain any SCI or description of activities that produce or relate to SCI or that I have reason to
believe are derived from SCI . . . that I have prepared for public disclosure” and “further agree[d]
that I will not disclose the contents of such preparation with, or show it to, anyone who is not
authorized to have access to SCI until I have received written authorization from the Department
or Agency that last authorized my access to SCI until I have received written authorization . . . that
such disclosure is permitted.” Form 4414 ¶ 4. Defendant further attested his understanding that
“the United States Government may seek any remedy available to it to enforce this Agreement,
including, but not limited to, application for a court order prohibiting disclosure of information in
breach of this Agreement.” SF 312 ¶ 6; see also Form 4414 ¶ 7 (same).
Accordingly, even assuming that the First Amendment applies in the context of a former
high-ranking government employee disclosing classified information without authorization after
completion of prepublication review, any such rights would be waived by the agreements that
Defendant entered into. Waiver of a constitutional right must be knowing and voluntary. Cf.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). There can be no suggestion that Defendant, a Yaletrained attorney and sophisticated public official with decades of experience in positions of trust
within the Federal Government, did not know and understand these obligations. Indeed, the text
of Defendant’s security agreements make clear that he could not release such material absent

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written confirmation at the end of the prepublication review process. These provisions also
provide that the United States would and could seek to enforce these agreements via a court order
preventing disclosure, see SF 312 ¶ 6; Form 4414 ¶ 7, contract terms that would be superfluous if
they did not constitute an acknowledgement that those very proceedings were proper. See Veit &
Co. v. United States, 46 Fed. Cl. 30, 35 (2003) (“The Court is to attempt to avoid an interpretation
that leaves a portion of the contract useless, inexplicable, inoperative, void, insignificant,
meaningless, superfluous, or achieves a weird and whimsical results.”) (citation and internal
quotation marks omitted). Nor can Defendant claim that such provisions constitute a prior
restraint, as courts have recognized that such prepublication review, as here, “is not . . . a ‘system
of prior restraints’ in the classic sense.” Edgar v. Coats, No. GJH-19-985, 2020 WL 1890509, at
*19 (D. Md. Apr. 16, 2020) (quoting Wilson v. CIA, 586 F.3d 171, 183 (2d Cir. 2009), and
additionally citing McGehee v. Casey, 718 F.2d 1137, 1147-48 (D.C. Cir. 1983)) appeal docketed
No. 20-1568 (4th Cir.). Defendant should be held to the obligations of his bargain.
Moreover, to the extent Defendant contends he has a constitutional right to publish his
book in its current form, the proper course would have been to complete the prepublication review
or to seek judicial review of any alleged denial or undue delay of permission to publish. Indeed,
case law makes clear that it is the author’s burden to seek judicial review of the Government’s
denial or delay of permission to publish. See Snepp, 897 F.2d at 143; Marchetti, 466 F.2d at 1317.
What is not Defendant’s right is to decide for the Executive Branch—indeed, for the entire
nation—that sufficient edits have been made and thereby usurp the Government’s proper role in
determining whether a manuscript contains classified information.
II.

The United States Will Be Irreparably Harmed Without an Injunction.
The United States will be irreparably injured absent preliminary relief.

The book

Defendant intends to publish on June 23 contains classified information, including information
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classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. This means it
contains instances of information that, if disclosed, reasonably could be expected to cause serious
damage, or exceptionally grave damage, to the national security of the United States. See Ellis
Decl. ¶ 19. And Mr. Ellis specifically concluded, moreover, that “certain passages in the draft
manuscript . . ., if disclosed, will damage the national security of the United States.” Ellis Decl.
¶ 22; see also Ratcliffe Decl. ¶¶ 6-7; Evanina Decl. ¶ 6; Nakasone Decl. ¶ 8. The rights that the
United States contracted for to protect national security—including the right to prepublication
review of writings that Defendant might disseminate with sensitive information—will be severely
undermined, if not entirely lost, if Defendant is not enjoined from further disseminating this
information. See Snepp, 444 U.S. at 513 (“both the District Court and the Court of Appeals
recognized that Snepp’s breach of his explicit obligation to submit his material—classified or
not—for prepublication clearance has irreparably harmed the United States Government.”); cf.
Providence Journal v. FBI, 595 F.2d 889, 890 (1st Cir. 1979) (“Once the documents are
surrendered pursuant to the lower court’s order, confidentiality will be lost for all time. The status
quo could never be restored.”); In re Papandreou, 139 F.3d 247, 251 (D.C. Cir. 1998) (“Disclosure
followed by appeal after final judgment is obviously not adequate in such cases [where privilege
is claimed over information] – the cat is out of the bag.”); John Doe Agency v. John Doe Corp.,
488 U.S. 1306, 1309 (1989) (Marshall, J., in chambers) (disclosure of materials pending a stay
would create an irreparable injury). Only by completing the review process can the Government
ensure that any personal benefits Defendant hopes to reap from this writing will not come at the
expense of the national security.
Courts routinely grant equitable relief to prevent the public release of confidential
information of all sorts on the ground that such public disclosure necessarily constitutes irreparable

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harm given that the confidentiality of information, once lost, can never be restored. For example,
courts will stay pending appeal orders to the Government to release documents, on the ground that
the public disclosure of information constitutes irreparable harm. See Providence Journal, 595
F.2d at 890 (granting stay of disclosure pending final appeal, as “denial of a stay will utterly
destroy the status quo”); Dep’t of Health & Human Servs. v. Alley, 556 U.S. 1149 (2009) (ordering
stay of district court’s order that directed agency to disclose records to plaintiff pending final
disposition of appeal); People for the Am. Way Found. v. U.S. Dep’t of Educ., 518 F. Supp. 2d
174, 177 (D.D.C. 2007) (stay necessary “to avoid irreparable injury [to the government] by having
to release documents prior to having the opportunity to seek meaningful appellate review”). While
the forced disclosure of non-public information alone may constitute irreparable harm, that harm
is heightened where classified information is involved. Unlike ordinary confidential information
the Government holds, the information at stake here is classified, including in some instances at
the Secret or Top Secret/SCI levels, which means by definition that its disclosure reasonably could
be expected to cause serious damage, or exceptionally grave damage, to the national security of
the United States. Ellis Decl. ¶ 19. And, in Mr. Ellis’s judgment, certain passages, if disclosed,
“will damage the national security of the United States.” Ellis Decl. ¶ 22; see also Ratcliffe Decl.
¶¶ 6–7; Evanina Decl. ¶ 6; Nakasone Decl. ¶ 8.
This is not surprising. When an official leaks classified information to the world it can
cause serious damage to the United States’ relationships with foreign powers or endanger future
military and intelligence activities by revealing U.S. intelligence capabilities or gaps in those
capabilities. And, as common sense suggests, “it is practically impossible to remedy the damage
of an unauthorized disclosure [of classified information] ex post.” United States v. Bin Laden, 58
F. Supp. 2d 113, 122 (S.D.N.Y. 1999); see also Snepp, 444 U.S. at 514; United States v. Hashmi,

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621 F. Supp. 2d 76, 83 (S.D.N.Y. 2008) (“The Government has a strong interest in preventing the
irreparable harm of disclosing classified information, which might jeopardize national security.”).
Defendant knows well the threat posed by disclosing classified information that might benefit the
Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national
security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to
criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793,
794, 798, 952, 1924.
III.

The Balance of Equities and Public Interest Factors Also Weigh In Favor of an
Injunction
“The final two factors in the Court’s analysis of a request for preliminary relief [are] the

balance of equities and the public interest.” U.S. Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F.
Supp. 3d 133, 163 (D.D.C. 2015). These two factors “merge” in cases where one of the parties is
the Government. Cf. Nken v. Holder, 556 U.S. 418, 435 (2009). This is particularly true in the
context of the possible disclosure of classified information, where the public interest is served by
ensuring that classified information vital to our nation’s security is protected from either
intentional or inadvertent disclosure.
In evaluating the equities, the Court is to “balance the competing claims of injury and . . .
consider the effect on each party of the granting or withholding of the requested relief.” Winter,
555 U.S. at 24 (internal quotation marks omitted). Here, the effect on the national security, the
responsibility for which is entrusted to the Government, is immense: the manuscript—even as
revised—contains instances of information that, if disclosed, reasonably could be expected to
cause serious damage, or exceptionally grave damage, to the national security of the United
States—and Mr. Ellis concluded that release of certain passages “will damage the national security

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of the United States.” See Ellis Decl. ¶¶ 19, 22; see also Ratcliffe Decl. ¶¶ 6-7; Evanina Decl. ¶ 6;
Nakasone Decl. ¶ 8. As discussed above, see supra Part II, this kind of harm is not reversible or
remediable once it occurs. In balancing the equities, the Court must “pay particular regard for
the[se] public consequences” Winter, 555 U.S. at 7. In contrast, any harm to Defendant is merely
a delay of the publication of his book for the duration of the preliminary injunction (i.e., until the
Court can render a decision on the merits of the claims raised by the United States), or until
Defendants removes the remaining classified information from the manuscript. In fact, that delay
need only encompass the time required to complete the very pre-publication review process that
Defendant voluntarily commenced. And any concern Defendant raises about the effect of an
injunction on his ability to speak is diminished, if not altogether eliminated, by the fact that
Defendant voluntarily agreed to condition his right to speak on securing a determination from the
Government that what he wanted to say would not reveal the classified information he was sworn
to protect.

Defendant’s interest in disregarding that agreement does not outweigh the

government’s substantial interest in adhering to it. At bottom, any delay is simply the consequence
of Defendant’s voluntary decision to accept a position of confidence and trust as National Security
Advisor to the President and to agree to the contractual obligations attendant to that position.
Permitting the final resolution of the instant dispute will further the Government’s interest
and the broader public interest in the observance of proper procedures to control national security
information and reduce the possibility of serious damage to the national security. As against an
interim delay in Defendant’s ability to reap the financial rewards from trading on the confidential
information he learned in his position of public trust, the merged public-interest and balance-ofequities prongs overwhelmingly favor the requested injunction.

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IV.

The Injunction Should Provide Full Relief to the United States
For the reasons discussed above, the United States is entitled to an injunction barring

Defendant from publishing the book. To ensure that the injunction cannot be circumvented, the
injunction should also prohibit the Defendant from proceeding with the publication of his book in
any form or media; require Defendant to notify his publisher that the book contains classified
information that he was not authorized to disclose; instruct his publisher to delay the release date
of the book; and to instruct his publisher to take any and all available steps to retrieve and destroy
any copies of the book that may be in the possession of any third party. The Court should further
enjoin Defendant from taking any additional steps towards publicly disclosing classified
information without first obtaining authorization from the United States through the prepublication
review process.
Furthermore, if this Court enjoins Defendant from distributing his book until he receives
written authorization after the conclusion of the government’s prepublication review, then that
injunction should also bind his publisher, Simon & Schuster.
Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds not only “the parties”
but also their “officers, agents, servants, employees, and attorneys,” and all “other persons who
are in active concert or participation with” them and who have “actual notice” of the injunction.
This rule “is derived from the common law doctrine that a decree of injunction not only binds the
parties defendant but also those identified with them in interest, in ‘privity’ with them, represented
by them or subject to their control.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945). It
provides, “[i]n essence[,] . . . that defendants may not nullify a decree by carrying out prohibited
acts through aiders and abettors, although they were not parties to the original proceeding.” Id.;
see also Marshak v. Treadwell, 595 F.3d 478, 486 (3d Cir. 2009) (“non-parties ‘guilty of aiding or

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abetting or acting in concert with a named defendant or his privy in violating the injunction ....
may be held in contempt.’” ” (quoting Savarese v. Agriss, 883 F.2d 1194, 1209 (3d Cir. 1989))).
Under these principles, when the producer of a product is enjoined from distributing it,
courts have subjected the product’s distributors to the same injunction. For example, in Aevoe
Corp. v. AE Tech Co., 727 F.3d 1375 (Fed. Cir. 2013), the Federal Circuit explained that the
distributor of an infringing product—which obtained the product from the infringing producer and
sold it in the marketplace—was “‘acting in concert’ with [the producer] in connection with the
resale of” the product and thus was bound by an injunction against the sale of the product. Id. at
1384. “Failure to enjoin” the distributor’s conduct, the court explained, “would thwart the
purposes of that injunction.” Id.; see also, e.g., CBS, Inc. v. PrimeTime 24 Joint Venture, 9 F.
Supp. 2d 1333, 1325 (S.D. Fla. 1998) (distributors were bound by an injunction because, “[i]f the
injunction did not apply to [them], the injunction would be effectively nullified”). That basic
principle of federal remedies applies equally where the product at issue is a book, because the Free
Speech Clause does not entitle book sellers to special exemptions from the application of general,
speech-neutral laws such as Rule 65. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986)
(“[T]he First Amendment is not implicated by the enforcement of a public health regulation of
general application against the physical premises in which respondents happen to sell books.”);
see also Branzburg v. Hayes, 408 U.S. 665, 682-83 (1972) (“[O]therwise valid laws serving
substantial public interests may be enforced against the press as against others, despite the possible
burden that may be imposed.”); cf. Bartnicki v. Vopper, 532 U.S. 514, 526-27 (2001) (applying
First Amendment scrutiny to suit against recipient of unlawfully obtained information under a
statute that specifically regulated the disclosure and use of such information and thus was not
speech-neutral, although it was content-neutral in certain applications).

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These principles subject Simon & Schuster to any injunction against Defendant’s
distribution of his book. As in Aevoe, Simon & Schuster is the exclusive commercial distributor
of Defendant’s book and obtained the book exclusively from him. Defendant can properly be
enjoined from unlawfully disseminating the book to the public, see supra pp. 23–26, and he
therefore cannot be permitted to circumvent that injunction by unlawfully delivering the
manuscript to Simon & Schuster before an injunction is entered—indeed, before press reports even
revealed that he and Simon & Schuster intended to release the book prior to the completion of the
prepublication review process. 6

*

*

6

*

Commercial resellers further down the distribution chain, such as booksellers, likewise
would be subject to the injunction under Rule 65(d) once they have actual notice of it, as Simon &
Schuster does.
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CONCLUSION
For the foregoing reasons, the Court should grant the motion for a temporary restraining
order and preliminary injunction. A proposed order accompanies this motion.
Dated: June 17, 2020

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
MICHAEL SHERWIN
Acting United States Attorney
ETHAN P. DAVIS
Principal Deputy Assistant Attorney General
DAVID M. MORRELL
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director
Federal Programs Branch
/s/ Daniel F. Van Horn
Daniel F. Van Horn (D.C. Bar. No. 924092)
Assistant United States Attorney
555 Fourth Street N.W., Room E4226,
Washington, D.C. 20530
Tel: 202-252-2506
Email: daniel.vanhorn@usdoj.gov
/s/ Michael J. Gerardi
Michael J. Gerardi (D.C. Bar No. 1017949)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Room 11514
Washington, D.C. 20005
Tel: (202) 616-0680
Fax: (202) 616-8460
E-mail: michael.j.gerardi@usdoj.gov
Counsel for Plaintiff

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