As senators mull a proposal by two Republican colleagues for the White House to send them John Bolton’s book manuscript to review, an open question is whether the administration would even be legally allowed to do such a thing.
Bolton’s attorney and book publisher would almost surely argue that giving Congress a manuscript that had been submitted as part of a prepublication review process should be protected — at the very least — under the very executive privilege notion that Republicans have argued they are trying to guard.
Bolton attorney Chuck Cooper hinted at concerns and hesitation about the manuscript being shared unnecessarily in his letter accompanying the manuscript sent to the White House on December 30. In that letter, he noted that Bolton’s team did not believe there was anything actually classified in the book, but submitted it as a courtesy and asked that it be reviewed only by officials typically involved in the prepublication process.
“I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews,” Cooper wrote.
Still, some legal experts tell CNN that President Donald Trump would in fact have the power to make his former aide’s explosive manuscript available for senators to review.
“The White House can make the manuscript available to the senators to review in a SCIF in whatever manner the President seems fit to permit. That said, unless the President is declassifying the manuscript it remains presumptively classified pending the ongoing review, so the senators can’t take notes, can’t remove a copy of the manuscript and can’t discuss its substantive contents,” according to Bradley Moss, a national security lawyer who is a partner at the Washington law office of Mark S. Zaid, the attorney who represents the whistleblower whose disclosure is central to the ongoing impeachment trial.
“(Bolton) had an obligation under his clearance NDA to submit for review. Until it’s cleared for publication, it’s presumed to be classified,” he added.
These legal experts argue that any judgment regarding classified material is no longer in the hands of Cooper or Bolton now that the manuscript has been submitted for prepublication review.
They tell CNN that the White House likely has the ability to hand the manuscript over to senators for review in a secure setting known as a SCIF, if Trump chooses to do so. This is especially true because there is no indication that the National Security Council has completed its prepublication review of the materials.
Others argue the issue isn’t about classified materials, it’s about other issues — from Bolton’s, or any author’s, First Amendment rights to matters of executive privilege.
The idea of getting Bolton’s manuscript from the White House came from Sen. James Lankford, an Oklahoma Republican, who said senators would review it in a classified setting. This proposal was quickly endorsed by Sen. Lindsey Graham, a South Carolina Republican who chairs the Senate Judiciary Committee and is a top Trump ally.
Lankford’s proposal would guarantee that “each Senator has the opportunity to review the manuscript and make their own determination” before deciding Trump’s fate, Graham tweeted.
Their plan could give Republicans some political cover, by opening up the process and allowing some new testimony, without taking the major step of issuing subpoenas for additional witnesses. The White House and Senate Majority Leader Mitch McConnell, a Kentucky Republican, have made it clear in recent weeks that they oppose any additional subpoenas and prefer a quick vote on acquittal.
“The move to provide senators with the manuscript in a SCIF could be a questionable strategic move,” according to Jamil N. Jaffer, former associate White House counsel to President George W. Bush and founder and executive director of the National Security Institute at George Mason University’s Antonin Scalia Law School.
“While it is unclear whether the White House could appropriately release the Bolton manuscript in response to Senator Lankford’s suggestion, to do so could be a particularly high-risk move because such a release could be viewed as a waiver of any executive privilege the White House might seek to assert with respect to matters covered in the book,” Jaffer said.
Until Republicans secure the 51 votes needed to defeat Democrats’ push for witnesses, Lankford’s manuscript option remains a possibility, raising questions as to whether it is legally feasible. CNN reported Tuesday that Republicans haven’t yet locked up the 51 votes needed to block witnesses.
In the manuscript, Bolton implicates Trump in the scheme to withhold nearly $400 million in US military aid until Ukraine’s leaders announced an investigation into former Vice President Joe Biden, according to The New York Times. Bolton’s account severely undercut the many denials from Trump that he had never attempted a quid pro quo or withheld the aid for political reasons.
Some Democrats on Tuesday quickly poured cold water on Lankford’s idea. Sen. Sheldon Whitehouse of Rhode Island said it was a “laugh out loud” proposal that had a “whiff of desperation.”
Since the beginning of the trial, senior Democrats have pressed their Republican colleagues to break ranks and support their calls for additional witnesses. The Democratic House managers have said a trial without any witnesses would be tantamount to a “cover-up” and a “rigged trial.”