Even if the claims are true, it doesn’t make it less petty to pursue a criminal investigation against him.
T here is new information about the Trump administration’s investigation of John Bolton. The probe, which I covered here and here, resulted in last week’s FBI searches of Bolton’s Maryland home and Washington, D.C., office, based on warrants authorized by two different federal magistrate judges — one in each of those districts. This could be alarming for Bolton. Clearly, administration officials are pushing back against suggestions that they are engaged in nothing more than retributive lawfare against a political enemy of the president.
Relying on leaks from unidentified sources, the New York Times (in an article co-written by five of its top reporters) confirms that the investigation stems from the classified information controversy over the 2020 publication of Bolton’s memoir (The Room Where It Happened) of his stint as Trump’s national security adviser (NSA). Released in the heat of the campaign leading to the election that Trump lost, the book portrayed the president as corrupt and incompetent.
Beyond that, the Times’ sources amplify the insistence of anonymous government sources, reported while last week’s searches were being executed, that the investigation was not a simple reopening of allegations that Bolton’s book illegally disseminated classified information. Those allegations had appeared to die when the Biden Justice Department closed the investigation, declining to prosecute Bolton, in mid-2021.
Rather, the story is as follows. In the course of monitoring adversary foreign governments, U.S. spy agencies intercepted information from an unidentified government that was spying on Bolton. The foreign government has not been identified, though the Times points out that China, Russia, and Iran would all have had reasons to be intensely interested in the doings of the president’s top White House adviser on matters of national defense, who had access to our government’s most closely held secrets. Based on that monitoring of the foreign government, our spy agencies suspected that Bolton was using non-classified channels to email documents containing classified information to people the Times gingerly describes as “close to him” — and which earlier reports along these lines pegged as family members. In light of the timing, the theory is that Bolton was gathering information for inclusion in his memoir.
On that score, the prior investigation of the memoir is also relevant because Bolton, a habitual note-taker, was suspected of using his notes as an aide-mémoire. His book is over 500 pages long, contains many passages that describe conversations in detail, and was completed in just three months: Bolton officially left his position on September 10, 2019, amid a dispute with Trump over whether he’d resigned or been fired; he delivered a completed manuscript to the administration for prepublication review on December 30.
Bolton had an occasionally tempestuous relationship with the president in the months prior to his termination. Naturally, then, the Justice Department’s investigative theory is that, knowing he’d be out of the NSA job soon and hoping to rush a book out in time to make a big anti-Trump impact prior to the election, Bolton pulled together sensitive information while he still had access to it, and was thus able, with extraordinary expeditiousness, to produce a tome.
For investigators and prosecutors, this background would bolster an allegation — if they can prove it — that Bolton used his privileged access to classified material to privately email it, via unauthorized channels, to people he trusted and who likely knew he was preparing to write (or was perhaps already writing) a memoir of his time as the NSA.
The Times report elaborates:
One major reason for conducting the searches was to see if Mr. Bolton possessed material that matched or corroborated the intelligence agency material, which, if found, would indicate that the emails found in the possession of the foreign spy service were genuine[.]
This is an intriguing passage. If the last part is true, it indicates that the government is unsure whether the information about Bolton’s emails that it intercepted from a foreign government is authentic. That is, it could instead be disinformation that the foreign government planted in order to sow discord, provoke Trump into taking action against Bolton, or to detect how the United States penetrates and processes that foreign government’s communications.
It would make sense, then, that the Justice Department, before making a decision about bringing charges against Bolton, would want to search his residential and work spaces to see if he possessed the emailed documents. If he did, that would confirm that the documents were real, rather than disinformation, and would help the FBI and DOJ build a felony case of mishandling national defense information (a violation of the Espionage Act, codified at Section 793(d) of Title 18, U.S. Code). On the other hand, however, one would think the government had many ways of authenticating Bolton’s emails without needing to search his home and office, and that before taking a step as drastic as executing a search warrant, it would have ensured that the documents it intercepted from the foreign government were not disinformation.
Apparently, Bolton’s book sheds no light on this subject. The Times reports that “the material in the intercepted emails included information that Mr. Bolton did not ultimately use in his book.” The paper speculates that Bolton may never have tried to use it because he did not want to harm national security, or that he may have tried to incorporate it only to be admonished against doing so during the prepublication review.
Even with these additional revelations, it strains credulity to contend that Bolton is under investigation for any reason other than his virulent political opposition to Trump, especially given the expanding docket of lawfare investigations against notorious anti-Trumpers.
Note that Trump’s Mar-a-Lago resort was searched because he illegally retained hundreds of classified documents and not only refused to return them upon request but misled investigators when given a grand jury subpoena requiring him to surrender them. You can argue that the Biden DOJ’s decision to search Trump’s home was too extreme, that less intrusive measures should have been tried, and that the indictment of Trump was unjustifiable given the DOJ’s decisions not to prosecute Hillary Clinton and Joe Biden for analogous misconduct. But Trump’s episode did involve serious misconduct.
Given that record, even if we assume for argument’s sake that Bolton did something wrong (which hasn’t been proved at this point), it is petty to pursue a criminal investigation against him when he fully cooperated with the government’s prepublication review process (which the Trump I administration abusively politicized) and did not publish whatever purportedly classified information is at issue. And that would be true even if Trump had not (a) terminated Bolton’s security detail when he was under a death threat from Iran over his patriotic service in Trump’s first administration, and (b) pardoned criminals who violently attacked police officers while rioting at the Capitol.