The Situation: About That John Bolton Search Warrant

The Situation on Thursday asked how bad off the United States Department of Justice really is.

This morning, I watched a vivid display of the answer to that question.

It was just about 7:00 am when the law enforcement vehicles started pulling up in front of the house of former National Security Advisor John Bolton. From the end of Fernwood Road in Bethesda, Maryland, it looked like a Montgomery County police operation. The vehicles at the end of the street were all local police cars.

But this was a mask. The officers explained to me that they were there only in support of the FBI, whose operation it was. The FBI vehicles were a hundred yards or so down the road, in front of the house. The agents were executing a search warrant. I livestreamed the matter here:

I have several thoughts on this incident, all of which are related to the timeline of events five years ago connected to the publication of Bolton’s book, “The Room Where It Happened.” Jonathan V. Last of the Bulwark usefully summarizes that timeline here:

• Bolton served as Trump’s third national security advisor—following the brief stint of Mike Flynn and the stormy tenure of H.R. McMaster. Bolton succeeded McMaster on April 9, 2018 and remained national security advisor until he resigned on September 10, 2019.
• After leaving the Trump administration, he wrote a book about his tenure.
• Per government requirements, Bolton submitted the book manuscript to the National Security Council for pre-publication review, a process designed to ensure that former government employees do not inadvertently publish classified information. The review process delayed the book’s publication.
• On April 27, 2020, after a lengthy negotiation with Ellen Knight, the senior director for records access and information security management at the NSC, Bolton claimed that Knight gave oral approval to move forward with publication.
• But on May 2, 2020, the NSC’s senior director for intelligence began a “supplemental” review of the manuscript. The publication date was delayed again.
• Bolton had given his publisher permission to move ahead with publication while the Ellis review was still underway.
• Bolton’s book had already been printed and bound, and members of the media had obtained advance copies when, on June 17, the government sought an injunction to prevent its release.
• President Trump then attempted to have courts strip Bolton of all proceeds from book sales.
• The Trump administration initial civil action, U.S. v. Bolton, was followed by an attempt to pursue criminal charges against Bolton.
• In the fall of 2020, as the presidential election neared a close, Trump’s DOJ head for national security matters, John Demers, opened the criminal investigation and empaneled a grand jury to determine whether Bolton could be prosecuted for criminally disclosing classified information.
• In June 2021, the Department of Justice, under new leadership, dropped its investigation and ended its attempt to hijack the proceeds from book sales.

I don’t know, and neither does anyone else outside of government, whether Bolton’s book contains any properly classified information and thus whether he violated the law in publishing it without completing his required prepublication review.

Here’s what I do know: This matter was investigated, initially under the first Trump administration and then under the Biden administration, and the Justice Department didn’t bring a case.

It is now being reopened, because, well, Pam Bondi and Kash Patel want scalps on behalf of their boss. 

It is possible, of course, that the issues in this new investigation are different, broader, than in the old one. Vice President JD Vance hinted as much today, when he said that the Trump administration is “in the very early stages of an ongoing investigation” into the former national security advisor, that “classified documents are certainly part of it,” but that “there’s a broad concern.” But we have little suggestion of that.

It’s easy to see why the case didn’t materialize the first time around. Bolton was not wantonly dumping classified material into the public domain. He complied with his prepublication review requirements and the initial review, following a negotiation, cleared the book—only to have a supplemental review then show up and delay it further. It was only when Bolton became convinced that the administration was playing politics and trying to prevent his criticisms of the president he had served that he cut the process short and published the book.

He did this, to be sure, at no small risk to himself if the manuscript should later be found to contain classified material—as the administration then claimed that it did. But Bolton has a good argument that he played ball and that the government’s dilatory review of the manuscript was not in good faith. It’s not hard to understand why a sane Justice Department would not want to take this to a jury.

But the current Justice Department has a different view of the whole thing. The department is currently scalp-hunting among the senior intelligence and national security leadership. The director of national intelligence, Tulsi Gabbard, has suggested that the Obama-era intelligence leadership was engaged in a “treasonous conspiracy.” And the Justice Department has snapped to attention to announce investigations of the subject. For reasons I have explained, these “investigations”—if they are real at all—are not leading anywhere productive. John Brennan and Jim Comey and James Clapper and Barack Obama, after all, have not even colorably committed crimes in connection with the 2016 intelligence community assessment of Russian interference in the presidential election that year. So this investigative Ponzi scheme will eventually collapse—amid myriad problems with statutes of limitations, presidential immunity, and a total absence of evidence of criminality.

But Bolton is in a different position. He did take a risk. He did disclose material without going through the full prepublication review process. And when a person does that, he takes on the risk the government will claim that some material in his publication is classified and that he is thus liable for its disclosure.

It is very wrong of the administration to reopen a matter related to a political critic for entirely vindictive reasons, a matter that was closed after being investigated fully and where prosecution was declined. That said, having promised scalps, and having very few actual scalps available among senior national security officials, you can see why Bolton’s pate looks tantalizing. 

But the clock is ticking on Bolton too. The book was published five years ago, and while charging Bolton with conspiracy could extend the statutes of limitations somewhat, it gets harder and harder to find overt acts in a conspiracy the further one gets away from the act of publication.

So hence the Bolton search warrant. It’s flashy. It lets Kash Patel tweet about how nobody is above the law. It menaces Trump’s critics. And it shows momentum against the former senior national security officials, whom Trump hates—even though the Bolton case has literally nothing whatsoever to do with the Russia investigation or the Ukraine phone call or any of the other scandals of the first administration. In the unified field theory of fighting Trump’s enemies, Bolton is the same as Comey is the same as Brennan is the same as Clapper is the same as Schiff is the same as Raskin is the same as Hillary Clinton.

An indictment of one is an indictment of all.

And a search warrant execution? What sweet revenge that must be for the Mar-a-Lago search warrant—even though it is not against Biden or Merrick Garland or Chris Wray or Kamala Harris or Jack Smith. It is against someone whose offense—if Bolton has, in fact, committed any offense—is to have published classified material in the course of being a political critic.

The trouble for the administration is that the Justice Department’s prior caution was correct. Because in a different way from the others, this case too is a bit of a Ponzi scheme. Yes, the FBI can get a search warrant, and maybe the Justice Department can even file charges. But eventually, the case will collapse—though perhaps only after Bolton is bankrupt. 

Present the full facts of this case before a jury, if it really comes to that, and I suspect it’s going to be very hard to get a conviction against Bolton. While he behaved aggressively with respect to his prepublication review obligations, he is going to have a sympathetic story to tell any jury—one in which he tried to play by the rules and the rules were weaponized against him to prevent him from telling his story. Probable cause for a warrant is one thing. It’s quite another thing to convince a unanimous jury beyond a reasonable doubt that someone committed crimes.

I don’t know if Bolton did commit crimes or did not. I do know that I trust the Justice Department that decided to let sleeping dogs lie a great deal more to decide whether to pursue him than I trust the one so keen now to wake those dogs.

The Situation continues tomorrow.