The Situation: Thoughts on the John Bolton Indictment

The Situation on Monday critiqued the Washington Post editorial page for its perfectly idiotic editorial on the prosecution of James Comey. 

Today saw the indictment of former National Security Advisor John Bolton.

Unlike the indictments of former FBI Director James Comey and New York Attorney General Letitia James, the charges against Bolton are not, on their face, frivolous. Indeed, if we assume the allegations to be true as stated—and there are good reasons to withhold judgment on that—they are quite serious. 

The indictment accuses Bolton of possessing and transmitting classified national security materials. It includes 18 counts separated into two categories: transmission of national defense information and retention of national defense information. 

In the first category, the indictment accuses Bolton of sending “diary-like entries” containing national defense information—transcribed from Bolton’s “handwritten notes”—to two unauthorized individuals, family members identified as “Individuals 1 and 2,” using his personal email and a non-governmental messaging application. These materials allegedly “memorializ[e] his time as  National Security Advisor.” According to the indictment, these documents included information such as intelligence about a future attack by a foreign adversary, covert actions in a foreign country, and planned U.S. operations; several are listed as “top secret.” 

In the second category, the indictment alleges that Bolton retained “unauthorized possession” of national security material that he “failed to deliver” to the appropriate authorities. This material, according to the charges, includes the same documents listed in the first category. 

These charges—unlike with the cases against Comey or James—are not obviously acts of malicious vengeance. Unlike the indictments in Virginia, the indictment does not bear only the name of a highly political U.S. attorney installed to do what her predecessor would not. The Bolton indictment in Maryland bears the names of career prosecutors, along with their boss. So it will take a considerable amount of time and litigation to sort through the details here and figure out how to assess Bolton’s behavior. If the facts prove to be as alleged in this document, it is the latest example—and there have been several involving officials in the military, the intelligence community, and in administrations of both parties—of dangerous sloppiness at senior levels. In this case, the matter is allegedly compounded by the fact that Bolton’s email was hacked by Iran-linked cyber actors. 

That said, there is real cause for caution here. All criminal defendants are presumed innocent until proven guilty. For a variety of reasons, that presumption deserves a certain emphasis in this case. 

Because one thing we know for sure is that President Trump hates John Bolton. 

And whether or not this indictment is justified—in whole or in part—it is just as surely a product of that hatred. That hatred has no legitimate role to play in prosecutorial decisions about Bolton’s conduct. And one doesn’t have to assert that Bolton is innocent to observe that it has clearly played some significant role here. The task of the court here is thus not merely to assess Bolton’s conduct but to assess the corrupting force of Trump’s hatred and vengeance.

The history of Trump’s statements and actions with respect to Bolton provide almost, though not quite, as strong a prima facie case for motion to dismiss for a vindictive prosecution motion as we can expect from Comey or James.

Trump’s ire for Bolton dates back to policy disagreements during Trump’s first term. After Bolton resigned as national security adviser (or, according to Trump, was fired) in 2019, Bolton flirted with testifying in the impeachment proceedings against the president. Even though Bolton played hard to get with the House and Senate and never ended up testifying, media reports suggested that Trump was planning reprisals against his adversaries—including Bolton.

Indeed, Trump’s public statements about Bolton leave little doubt of his disdain for his former national security advisor. Most of these statements stop short of declaring him a criminal and urging his prosecution and just ridicule the man:

• “I found John Bolton to be one of the dumbest people in Government … A total & unhinged WARMONGER, the red faced ‘boiler ready to explode’ … those very stupid voices …”
• “I used him well … The good news is that I won big negotiations with this moron by my side … they thought I was going to war, CONCEEDED [sic] ALL!”
• “Wacko John Bolton’s ‘exceedingly tedious’ (NYT) book is made up of lies & fake stories.”
• “A disgruntled boring fool who only wanted to go to war. Never had a clue, was ostracized & happily dumped. What a dope!”
• ​​“I thought he was a very dumb person … every time people saw me come into a meeting with John Bolton … they thought he’d attack them … We got nothing out of it except a lot of death. … John Bolton was one of those guys, a stupid guy.”

But not all. In 2020, after Bolton announced he would be publishing a book about his time in the White House, Trump reportedly told aides that  Bolton was a “traitor.” Following a series of genuine irregularities in the prepublication review process for the book, in which the administration initially cleared the book for publication and then reversed itself and objected, the Justice Department sued to enjoin its publication on grounds that it contained classified material. The department also opened an investigation into Bolton. And in June of that year, Trump said of Bolton in an Oval Office interview with Fox News: “He took classified information and he published it, during a presidency. It's one thing to write a book after. During. And I believe that he's a criminal, and I believe, frankly, he should go to jail for that, and that probably, possibly will happen. That's what should happen.”

In 2021, under the Biden administration, the Justice Department and Bolton settled the lawsuit and Justice closed the investigation. The matter seemed settled. 

That is, until January 2025, when Trump returned to the presidency. As one of his first moves back in office, Trump stripped Bolton of his security protections. And a renewed investigation followed—one concerning a separate matter that had arisen under the Biden administration but which had never gained steam. It was this matter that resulted in today’s indictment.

Most recently, in August, the FBI executed a search warrant at Bolton’s home. While Trump claimed to have no foreknowledge of the raid, FBI Director Kash Patel tweeted, “No one is above the law…@FBI agents on a mission” just as the Bolton raid was beginning, to which Attorney General Pam Bondi replied, “America’s safety isn’t negotiable. Justice will be pursued. Always.” The New York Post published an article at almost exactly the same moment, suggesting that someone was trying to humiliate Bolton.

Vice President J.D. Vance, meanwhile, made specific comments about the investigation, showing that the White House was quite read in on it. He stated: “Classified documents are certainly part of it. But I think that there’s a broad concern about . . . Ambassador Bolton. They’re going to look into it. And like I said, if there’s no crime here, we’re not going to prosecute it.” 

It was a curious and revealing use of the word “we.”

Trump’s hand is also easy to discern in the Justice Department’s push for swift charges against Bolton after the search warrant. A Maryland grand jury has reportedly been hearing evidence for several weeks, but CNN reported that the deputy attorney general’s office has pressured the Maryland U.S. attorney’s office to charge Bolton before the end of this week—a timeline that has faced pushback by career prosecutors at the Justice Department and the U.S. attorney’s office.

In a case involving sensitive information of this nature, it would typically take several months following a search warrant merely to process the information collected. In normal classified information cases, the government takes the time to verify that each piece of supposedly classified information was properly classified to begin with and remained so at the time of the supposed misuse. 

That, and the notably public nature of the raid on Bolton’s home, as well as Trump’s apparently direct instructions to Patel and Bondi concerning whom he wants investigated, suggest that the president’s personal vendetta against Bolton was a major factor in driving the investigation against him.

There’s another reason to be at least a little bit wary of the charges against Bolton: The Justice Department in the previous administration, in which the president did not have a vendetta against the former national security advisor, did not pursue this case aggressively. This is not per se evidence that the current case has been corrupted by Trump’s drive for retribution. After all, different administrations make different enforcement judgments all the time. And maybe the Bolton investigation would have progressed had Trump not retaken power. That said, it is suggestive that a Democratic administration—and Bolton is by no means beloved by Democrats—let this matter lie for several years, and then the Trump administration came back in and put it on the fastest of fast tracks. 

It is also difficult not to view the charges against Bolton in light of recent Justice Department actions against other Trump adversaries, including Comey and James. These prosecutions, although they differ markedly in substance from Bolton’s, form a clear pattern of retributive action taken against Trump’s enemies. From posts on Truth Social to public speeches, the president has promised reprisals against those who have criticized him. And he has delivered.

In that light, it is important not to view this indictment with the sort of presumption of good faith and accuracy one is accustomed to attaching to Justice Department actions. There should be, at least with respect to political enemies of the president, a presumption of malice that attaches to prosecutorial actions—especially when those actions involve prosecutors racing to bring charges others have not brought against the president’s foes. 

None of this is to say that Bolton is innocent. And none of it is to say that he has—as Comey and James likely do—an overpowering vindictive prosecution motion to file. That said, Bolton, even if he is guilty, probably can demonstrate a presumption of vindictiveness on the part of the government which would shift the burden of proof to the government to justify its case with legitimate reasons for the charges. (For an excellent explication of the standards in vindictive prosecution motions, see this Lawfare piece by Ema Rose Schumer.)

It is to say that the presumption of innocence should never be stronger than when one knows beyond a shadow of a doubt that the prosecution and its investigators are playing dirty—and doing so for nakedly political reasons. It is possible, in other words, that Bolton is both a scoundrel and a victim. 

The Situation continues tomorrow.