Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims
In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.
In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.
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 leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.
Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.
I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.
But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).
Cooper. Again.
Damn.
Supposedly some GOP Senators believe Cooper statement:
https://twitter.com/maggieNYT/status/1221789190725283840
5:36 AM – 27 Jan 2020
I should have realized Marcy had already responded to this:
https://twitter.com/emptywheel/status/1221793821597585413 5:55 AM – 27 Jan 2020
I assume the White House is calculating that wavering GOP will feel it even harder to remove themselves from the coverup the sloppier it gets. That calculation has been true so far.
I keep thinking about the “heads on pikes” comment.
When your shoddy admin. results in losing even a questionable right to assert privilege – allowing shit to hit the fan – the only redoubt is to threaten those who waver.
Mr. Trump has a problem, though. His career is full of incidents where he issues threats and then caves to anyone with remotely similar power.
That shows Trump has forgotten much that Roy Cohn tried to teach him. A real mob boss does not alert a target by issuing threats. He just does it. Word gets around.
harpie said, “I keep thinking about the ‘heads on pikes’ comment.”
And now I’m doing a double take on Bolton’s “hand-grenade” remark.
Who else would submit a hand-grenade for prepublication review?
And Pat Cipollone mistook Bolton’s hand grenade for just another drug deal, instead.
i’d guess that the Republican political swells serving the nation in our senate will retain their fear of the great unwashed who thrust them into power. but….
one never knows when the damn might break with a rush…
Keep your ears/eyes on Murkowski, Alexander and Saxe. Romney and Collins have jumped the bag. Trump’s approval rating in Alaska has gone upside down.
Cooper mentions the NDA’s. How do they fit in to all this?
Everyone who holds and SCI clearance has to sign an agreement to submit manuscripts for pre-publication review. Something like this: https://fas.org/sgp/othergov/dd_1847_1.pdf. It’s not an NDA in the sense that might be used in the private sector and the government can obviously fudge a bit to squash information but it really only pertains to classified material (which it would be criminal to disclose in any case).
Thank you. I should have remembered that.
I immediately thought of the Trump NDA’s that we heard about early in the term, for “white house officials”…or something like that. I don’t really remember what happened with those.
Is pre-publication review often referred to as NDA?
It does seem like some loaded wording.
Not in my memory. It may be review to make sure NDAs aren’t breached, though. (I’m not sure whether the WH NDAs are even legal. Classified information isn’t under an NDA, but under legal restrictions.)
From what I recall of, e.g., Nada Bakos repeatedly talking about her book when it was stuck in pre-publication review, “NDA” (or similar phrasing) was never used.
Found this
SUBCHAPTER II—EMPLOYEES’ RIGHT TO
PETITION CONGRESS
§ 7211. Employees’ right to petition Congress
The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.
(Added Pub. L. 95–454, title VII, §703(a)(3),
In here https://www.govinfo.gov/content/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partIII-subpartF-chap72-subchapII-sec7211.pdf
Thanks again to Ms. Wheeler. I still think Bolton would be better off talking in a non legal setting. He can pump his book and make some disclosures, and there won’t be any adverse lawyers.
In the Senate there will just be a mass of nonsense privilege assertions.
Interesting timing correlation of the WH receipt of Bolton’s manuscript for pre-publication review (12/30/19) and the assassination of Soleimani (1/3/2020) which Bolton had been long proposing. Any chance these events are related?
That struck me as an interesting coincidence at the time, like compensatory action for Bolton’s silence. Need to check the date that Trump was presented the options for response to contractor’s death, though.
Relatedly, wonder why Bolton was photographed wandering around on the street in Qatar about a week ago.
schumer needs to, on the senate floor, repeatedly dare trump to testify under oath in front of the senate. after all, no one can stop him from testifying. let the world see he is scared to defend himself or let him lie under oath. if mcconnell does not allow it the Dem candidates can all use that effectively in the elections and trump’s victory lap will be met with calls that he is chickenshit.
A person has a right to refuse to testify. But we also draw an inference from assertion of that right. Those who are innocent usually have a story that checks out long before trial.
Schumer just did. On CNN, not the Senate floor. Paraphrase: ‘Of the two people who were party to Bolton’s conversation with the President, only one of them is refusing to testify under oath to the truth of his version.’
LOL!!
Three Tweets:
1] https://twitter.com/reporterjoe/status/1221811635196768256
7:06 AM – 27 Jan 2020
2] https://twitter.com/emptywheel/status/1221812627501993986
7:10 AM – 27 Jan 2020
3] https://twitter.com/JakeSherman/status/1221817761862766593
7:30 AM – 27 Jan 2020
Maybe this is where Lankford, Lee and Graham are instead of at the hastily un-cancelled press briefing:
https://twitter.com/DanaBashCNN/status/1221813036027207680
7:11 AM – 27 Jan 2020
That is really rich. They could take it to the bank.
They are “frustrated”?
Give me a break.
These GOP senators are getting played, and It’s laughable that they would think three years of kow- towing to Trump equals his respect or protection.
Trump doesn’t give a sh*t about their reputations, “Trump only cares about the big stuff that affects him personally”
Wouldn’t it interesting if it became known that Moscow Mitch and some other Senators knew about the contents of the manuscript in advance but that other Senators didn’t know.
Personally I take these stories about senators feeling blindsided with grain of salt. I think it more likely than not that all Republicans in the Senate were aware of the contents of the manuscript and only feel blindsided because someone let the cat out of the bag.
Although I have no clue how it could have happened (clearly the party of Trump knew to be on the lookout for the submission of Bolton’s book) if those who needed to know knew, I would think we would be able to look back and see more evidence of the knowing….
Unless they know, and don’t give a crap because they are confident that Republican senators, in order to stay off the hot seat, will allow themselves to be herded into a corner and forced to give their unconditional blessing to Trump’s magic wand.
Poof!
What John Bolton book?
Attempt to distract us and the press [5 minutes ago]:
https://twitter.com/stevenportnoy/status/1221830365322653700
8:20 AM – 27 Jan 2020
Schiff wants the underlying documents … is not as interested in the manuscript:
https://twitter.com/ShimonPro/status/1221813736429838336
7:14 AM – 27 Jan 2020
Golly, if only there was a mechanism, say maybe something like a formal impeachment inquiry, where Schiff could have demanded such things. Without whining after the all too hasty and shallow fact.
Oooh Ooooo!! Me, me!!!
Uhhhh, Plea Bargain!!!!!
What, wrong again? OOF…Dang it!!!
Uh, starts with an S, I know this!!!! Ssssss….subbbb, umm, subbbbb, submarine? Gosh, this is hard. Maybe Nancy knows.
Give me a break. Look how this is playing out. When do you think the subpoena fight would have come to an (unknown) resolution? This was a calculated risk with one of the goals being that republican Senators would be forced to vote on the record to support the cover up or stand at least minimally for the rule of law. If it was two years ago going to court would have been the way to go. Timing forced the hand. With that said I hope the House, SDNY, or whoever else continues to pursue all legal recourse to get as full a version of the truth out however long it takes, on the Ukraine matter and all others. There are different strategies and goals for the short, medium, and long term.
No, “Jason Stephens” you give me a break. What kind of person is too timid and cowardly to fight for what is right and they believe in? “Timing” did not force jack shit, and to any extent it did, it was solely because Pelosi et. al sat on their asses for so long.
And, please spare me the “two years in court” bunk. As I have explained previously the Nixon subpoena case went from issuance to Supreme Court decision in about four months. Please understand that you are blowing shit at people that actually know historical precedent and how to litigate things in court.
You have turned out all too prescient about the slow, half-hearted and bumbling steps toward impeachment.
bmaz,
I think you underestimate the constraints on the Speaker. You, and I dare say all, readers of this blog know there was enough predicate (hope I’m using that word right.) to open an investigation in Jan 2017. That was emphatically not the position of “America” as a whole that month. I wish the house had started impeachment sooner, I think they could have started impeachment sooner, but when is a judgment call. Leaders have to be in front, but as has been pointed out before, they better not get too far out in front. It’s my personal opinion that Speaker Pelosi is a brave woman.
It was 25 months from break in to SC decision on the tapes.
Hi there disingenuous, if not straight up duplicitous, “dat”.
The time frame is never crime to SCOTUS, you are just trying to gaslight people here with that kind of garbage.
As explained previously, the actual time from subpoena to Supreme Court decision in Nixon was NOT “25 months” as you would lie to people here about, but, instead, 4 months or less.
Please try to not lie and gaslight people in this forum. That is frowned on.
bmaz, that is intermperant.
Don’t gaslight people.
I do not underestimate anything. But I do know how to litigate things, and understand perfectly how to use the best tools you have always. January 2017 is a beyond bogus reference date, Pelosi and the Dems did not retake the House Majority until January 2019.
Sure, Pelosi is a brave and admirable woman. But not just a woman but a person, irrespective of sex. As a leader though since January 2019, she has been a feckless coward basing her actual sworn duty to protect and defend the Constitution on her own little political desires instead.
Yes, sure, “Leaders have to be out front”. That ought to include being able to actually be “out in front” instead of being a coward refusing to do so because of cowardice and political expediency.
(apologies if I’m not keeping my handles straight, I don’t recall commenting here before though I’ve been reading steadily for 18 months now). This is a point worth arguing. The politician does in fact understand something that the legal scholar does not, which is that the power of the constitution does not reside in its correct interpretation, but in its agreed interpretation. If you only need 15% of people to say “you are interpreting the constitution correctly,” you can impeach the president on 3 January 2019, but don’t come crying to me when your kindergarten teachers are all armed with AR-15s for your child’s safety.
Naw, it rests on correct interpretation. And there is a rich history to derive that from, starting with the Federalist Papers through to today.
Also, welcome to Emptywheel comments.
o/t It feels like eons ago we were talking about this…but it was really only yesterday:
https://twitter.com/KFILE/status/1221811040792535040
7:03 AM – 27 Jan 2020
As I said on another thread about an hour ago…Jackson Browne’s Before the Deluge keeps playing in my head.
Interesting, isn’t it, that Cooper made the statement he did, which implicitly confirmed that the reports of the contents of the manuscript are accurate. He could have just said, as Bolton aide Tinsley did, that Bolton had only shared the draft with the WH.
This suggests to me the desire to push the story forward.
The Philadelphia Inquirer’s Will Bunch (@will_bunch) has a delicious comment:
The guy in his picture has longer hair and no mustache, though, and I think his first name was Michael.
That was the one who slept with Marla Maples while she was still married to Trump. Not the other, more evil one.
The RWNJs are claiming that the publishers are helping the Dems, or something to that effect. It’s like they don’t realize that there are not that many big publishers, the kind that can do seven-figure advances.
Remember when Roberts reprimanded both sides for incivility?
That was an eon ago, when:
https://www.theatlantic.com/ideas/archive/2020/01/utter-ridiculousness-us-senate/605566/
Am I the only one who blew [insert hot beverage of choice] out their nose upon reading that quote from Roberts?
As @lexibelc notes, a student at Philadelphia’s William Penn Charter School is being tested for the coronavirus.
And @JamilSmith reminds us that the leading U.S. official for overseeing pandemic responses left the White House in 2018. John Bolton then promptly closed down his NSC’s global health security team.
The Trump mantra seems to be if you don’t know what it is or can’t manage it, shut it down. Is it possible that what best protects Trump’s ego might not work for anyone else?
What Josh Marshall said
Here’s the deal: If Trump promises Bolton a War on Iraq, Bolton will turn around on a dime.
That reminded me of Matt Tait’s take, here:
https://twitter.com/pwnallthethings/status/1221805542680793088
6:41 AM – 27 Jan 2020
More bureaucratic warfare. This mostly for creating a paper trail to forestall retaliatory action. The overall tone that I got was that Bolton was laying out what would happen if regulations and official policy were followed while giving the impression that he had no real expectation that would actually happen.
If Trump has a legitimate national security reason for blocking Bolton’s testimony at Trump’s impeachment trail in the Senate, then wouldn’t Trump also have a legitimate national security reason for censoring Bolton’s book?
Conversely, if Trump has no legitimate national security reason for censoring Bolton’s book, then how could Trump have any legitimate national security reason for blocking Bolton’s testimony at Trump’s impeachment trial in the Senate?
I am not suggesting that Trump is under any obligation to be logically consistent. I’m suggesting only that the Constitution of the United States of America could be interpreted as though it were capable of being–perhaps even expected to be–logically consistent at least from time to time.
Oh! I am so naïve, sometimes. Ha-ha!
One thing I am curious about is…why is this such big news?
Right now on Google News, I can read USA Today calling it a “Bombshell”, CBS calling it “revelations”, and Bloomberg calling it a “Smoking Gun”
As far as I can tell, there is nothing factually new in what Bolton said. This was the subject of the original whistleblower complaint, and many different government officials who were party to the call agreed in broad terms. Mulvaney even said as much during a press conference. And, most importantly, Trump’s defense team has not really factually debated that there was a request to investigate Biden in return for funding. There argument, as far as I understand it, is that “Abuse of Power is not a Crime”
I mean, Bolton is an important witness, but what has he said that we don’t already know?
I would think it because his testimony would fall into the category of direct evidence rather than circumstantial evidence.
Legally, that does not matter in the slightest. Here is common language used in jury instructions:
The problem as I see it, is Trump doesn’t need (or seem to have) a strong legal defense.
All Trump’s team needs to do is sell a “good enough” story to Trump’s “followers” and the Republicans know they will be blessed with another day, week or month, to push their own agendas, line their own pockets and build their own power.
by what authority or legal precedence, can a president force/block a person from testifying if subpoenaed as long as there is not a national security issue (however that is defined)? what happens if you go forth? are you jailed and can then fight it?
#CNN #News (youtube)
White House has issued formal threat to John Bolton to keep him from publishing book