United States v. Bolton ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Case No. 1:20-cv-1580-RCL
JOHN R. BOLTON,
Defendant.
MEMORANDUM OPINION
As a condition of becoming President Trump’s National Security Advisor, defendant John
Bolton signed three nondisclosure agreements with the government. The agreements guard
classified information, including classified information about intelligence sources and methods
known as sensitive compartmented information (SCI). They require recipients of classified
information to submit certain writings for security review prior to publication. The government
alleges that Bolton violated the agreements when he released his memoir, The Room Where It
Happened, before completing prepublication review. So the government sued Bolton, seeking a
constructive trust over all profits from the book as well as injunctive and declaratory relief.
The government now moves for summary judgment. Mot. Summ. J., ECF No. 44. Bolton,
in turn, asks the Court to delay consideration of that motion under Rule 56(d) until he has had the
opportunity to conduct discovery in two discrete areas. Mot. Defer, ECF No. 49; see Fed. R. Civ.
P. 56(d). Bolton has not been able to conduct any discovery so far.
Bolton’s motion to defer requires the Court to determine whether two types of evidence
would be material to Bolton’s opposition to summary judgment: (1) evidence of whether the
President or senior White House officials acted in bad faith by delaying prepublication review and
1
attempting to unduly influence classification decisions and (2) additional evidence of whether the
book contains properly classified information.1 The Court holds that evidence of bad faith would
be material to summary judgment because it could support an unclean hands defense. The Court
also holds that additional evidence about whether the book contains properly classified material is
not material to summary judgment.
Therefore, the Court will GRANT Bolton’s Rule 56(d) motion [49] and will DENY
WITHOUT PREJUDICE the government’s motion [44] for summary judgment.
I. BACKGROUND
The Court draws its discussion of the factual background of this case from its opinion
denying Bolton’s motion to dismiss. Mem. Op. (Oct. 1, 2020), ECF No. 57.
A. Classified Information and the Agreements
The federal government classifies information at three levels.
Information is classified as confidential, secret, or top secret if its
unauthorized release could cause, respectively, damage, serious
damage, or exceptionally grave damage to the national security.
Exec. Order No. 13,526 at § 1.2(a), 75 Fed. Reg. 707, 707 (Dec. 29,
2009). Information may not be classified to conceal unlawful
behavior, prevent embarrassment, or delay the release of otherwise
unprotected information. Id. at § 1.7(a), 75 Fed. Reg. at 710. When
classified information concerns or derives from intelligence sources
and methods, the government designates it as SCI. All SCI is
classified as confidential, secret, or top secret.
Before accessing classified information, a person must sign a
nondisclosure agreement. Id. at § 4.1(a)(2), 75 Fed. Reg. at 720.
The government’s nondisclosure agreement for classified
information is referred to as a Standard Form 312. For SCI, the
agreement is called Form 4414.
1
When the Court discusses whether material has been “properly classified,” it looks to the relevant executive order
and any applicable agency classification procedures. See McGehee v. Casey, 718 F.2d 1137, 1143–47 (D.C. Cir.
1983) (evaluating classification scheme based on then-applicable executive order); see also Exec. Order No. 13,526
75 Fed. Reg. 707 (Dec. 29, 2009). It does not consider acts exogenous to the ordinary classification process. Rather,
any such acts—such as Bolton’s allegations of improper political influence—come into play when the Court evaluates
bad faith.
2
Id. at 1–2.
1. SCI Nondisclosure Agreement (Form 4414)
The SCI nondisclosure agreement imposes lifelong obligations on
persons granted access to SCI. The agreement defines SCI as
information that “involves or derives from intelligence sources or
methods and is classified or is in process of a classification
determination.” Ex. A at 4, ¶ 1.[2] Before signing the agreement, a
recipient of SCI must receive a security indoctrination “concerning
the nature and protection of SCI, including the procedures to be
followed in ascertaining whether other persons to whom [he]
contemplate[s] disclosing [SCI] have been approved for access to
it.” Id. at 4, ¶ 2.
The agreement imposes the following obligations. First, a recipient
agrees to “never divulge” any marked or known SCI without written
authorization. Id. at 4, ¶ 3. The recipient also agrees to submit for
prepublication security review any writings that meet one of several
SCI-based triggering conditions, id. at 4, ¶ 4, in order to “give the
United States a reasonable opportunity to determine whether the
[writing] sets forth any SCI,” id. at 4, ¶ 5. Third, the recipient agrees
to “not disclose the contents of [a writing submitted for review]
with, or show it to, anyone who is not authorized to have access to
SCI until” he receives written permission from the government. Id.
at 4, ¶ 4. Fourth, the agreement provides that SCI remains property
of the United States. Id. at 4, ¶ 8. Finally, upon an unauthorized
disclosure of SCI, a recipient assigns to the government “all rights,
title and interest, and all royalties, remunerations, and emoluments
that have resulted, will result, or may result” from the disclosure.
Id. at 5, ¶ 12.
Id. at 2–3.
2. Classified Information Nondisclosure Agreement (SF 312)
The classified information agreement imposes similar obligations
on parties granted access to classified information. The agreement
defines classified information as “marked or unmarked classified
information . . . and unclassified information that meets the
standards for classification and is in the process of a classification
2
“All references to exhibits refer to the exhibits to the original complaint, ECF No. 1. The United States did not refile
the exhibits attached to the original complaint when it filed the first amended complaint, but the first amended
complaint refers to the exhibits as if they were attached. See He Depu v. Yahoo! Inc., 950 F.3d 897, 901 (D.C. Cir.
2020) (‘In deciding a motion to dismiss, a court may . . . consider documents attached to or incorporated in the
complaint.’).” Mem. Op. 2 n.1 (internal quotation marks omitted).
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determination.” [Ex. A] at 2, ¶ 1. As with a recipient of SCI, a
recipient of classified information must be trained in how to protect
classified information and in the procedures for “ascertaining
whether other persons to whom [he] contemplate[s] disclosing
[classified] information have been approved for access to it.” Id. at
2, ¶ 2. Under the agreement, a recipient of classified information
agrees to “never divulge” any classified information except (a) to an
authorized recipient or (b) with written authorization. Id. at 2, ¶ 3.
He also agrees to consult with the government before disclosing any
information if he is uncertain about its classification status. Id. As
with SCI, classified information remains the property of the United
States. Id. at 2, ¶ 7. And as with SCI, a recipient of classified
information assigns to the government “all royalties, remunerations,
and emoluments that have resulted, will result or may result from
any [unauthorized] disclosure.” Id. at 2, ¶ 5.
Id. at 3.
B. Factual History
Bolton served as President Trump’s National Security Advisor from
April 2018 to September 2019. First Am. Compl. ¶ 9, ECF No. 18.
In that role, he led the National Security Council (NSC) in advising
the President on national security and foreign policy questions and
in facilitating interagency coordination on those topics. Id. at ¶¶ 7–
8; see generally National Presidential Security Memorandum 4, 82
Fed. Reg. 16,681 (Apr. 6, 2017). The National Security Advisor
regularly deals with some of the most sensitive information the
government possesses. First Am. Comp. ¶ 7.
When he became National Security Advisor, Bolton signed three
nondisclosure agreements with the United States. He signed two
SCI nondisclosure agreements (Form 4414) to access SCI.[3] Ex. A
at 4–7. He also signed a classified information nondisclosure
agreement (SF 312) to access classified information. Id. at 2–3.
In the months after Bolton left the White House, he and publisher
Simon & Schuster agreed to produce a memoir of Bolton’s time as
National Security Advisor. First Am. Compl. ¶ 23. Bolton titled his
memoir The Room Where It Happened.
Bolton then began a prepublication review process. At the end of
2019, Bolton’s attorney contacted Ellen Knight, the NSC’s senior
3
“Bolton signed two copies of Form 4414 because each allowed him to access different Special Access Programs,
which provide compartmented security for SCI. The terms of the two agreements are identical, except that the
agreements list different Special Access Programs.” Mem. Op. 4 n.3.
4
director for records access and information security management, to
submit his manuscript for review. Id. at ¶ 31; Ex. D. In a letter to
Knight, Bolton’s attorney asserted that “Bolton has carefully sought
to avoid any discussion in the manuscript of [SCI] or other classified
information, and we accordingly do not believe that prepublication
review is required.” Ex. D. He described the decision to submit the
manuscript as taken “out of an abundance of caution, as
contemplated by the nondisclosure agreements that [Bolton]
entered.” Id. Knight and her staff conducted a preliminary review
of the manuscript and informed Bolton that it contained “significant
amounts of classified information,” some of which was classified as
top secret. First Am. Compl. ¶ 33; Ex. E; see also Ex. H. Through
in-person meetings, phone calls, and written comments, Knight and
Bolton worked through an iterative series of changes to his
manuscript to excise classified information. First Am. Compl.
¶¶ 41–45. On April 28, 2020, Knight completed her prepublication
review and believed that the manuscript did not contain classified
information. Id. at ¶ 46. But despite Bolton’s requests for a letter
confirming that he had permission to publish his manuscript, Knight
declined to provide a letter and told him that the review was
ongoing. Id. at ¶¶ 47, 49.
After Knight completed her initial review, Michael Ellis, the NSC’s
senior director for intelligence programs, began a second review. Id.
at ¶ 51. Ellis possessed delegated authority to classify information,
id., see also Exec. Order No. 13,526 at § 1.3(a)(3), 75 Fed. Reg. at
708, and had regular access to more “extremely sensitive
intelligence reports” than Knight, First Am. Compl. ¶ 52. Ellis
determined that the manuscript contained classified information,
including SCI. Id. at ¶¶ 57, 59. Accordingly, on June 8, 2020, the
NSC’s legal advisor sent Bolton’s attorney a letter explaining that
the manuscript contained classified information and that publication
could not occur until the government confirmed that the
prepublication review process was complete. Id. at ¶ 54.
Nevertheless, Bolton authorized Simon & Schuster to publish his
book, id. at ¶¶ 53–55, Ex. P, and Simon & Schuster forged ahead
with publication, id.. ¶ 64, Ex. P. By June 10, 2020, Simon &
Schuster had printed the memoir and distributed it to retailers and
reviewers. First Am. Compl. ¶¶ 64, Ex. P.
Id. at 4–6.
C. Procedural History
On June 16, 2020, one week before the memoir’s official release
date, the government commenced this action. It sought (a) a
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declaration that Bolton had acted unlawfully, (b) an injunction to
prevent Bolton from publishing the book, and (c) a constructive trust
over Bolton’s royalties. See Compl. In its original complaint, the
government alleged only that the manuscript contains classified
information. See id. at ¶ 58. Three days later, the government
amended its complaint to allege that Bolton’s memoir contains SCI.
First Am. Comp. ¶ 59.
Id. at 6.
In the amended complaint, the government alleges that Bolton breached the SCI
agreements, the classified information agreement, and his fiduciary duties. First. Am. Compl.
¶¶ 68–86. It seeks a constructive trust over Bolton’s profits from his memoir and injunctive and
declaratory relief. Id. at pp. 25–26.
The government sought, and the Court denied, a temporary restraining order and a
preliminary injunction to prevent the memoir’s publication. See Mem. Order 6, 10 (June 20, 2020),
ECF No. 27.
After the memoir was published, Bolton moved to dismiss the complaint. The government
opposed the motion and moved for summary judgment. Bolton, in turn, asked the court to delay
consideration of the motion for summary judgment until he is able to conduct discovery.
The Court denied Bolton’s motion to dismiss the complaint, but directed the parties not to
hold a discovery conference until further order. See Order (Oct 1, 2020), ECF No. 56. Bolton
answered the complaint, raising numerous affirmative defenses including prior material breach of
the agreements and unclean hands. Answer ¶¶ 90, 95, ECF No. 58; see also id. at ¶¶ 87–89, 91–
94, 96–97.
Bolton’s motion to deny or delay consideration of the motion for summary judgment and
the government’s motion for summary judgment are now before the Court. The Court has
benefitted from extensive briefing on both motions. Bolton supported his Rule 56(d) motion with
the requisite affidavit, Cooper Decl., ECF No. 49-2, and the parties have fully briefed the
6
motion. ECF Nos. 49-1, 50, 51. The government filed a brief in support of its summary judgment
motion, ECF No. 44, but Bolton did not file a brief in opposition. Additionally, the Court heard
argument on the motions. Hr’g Tr. (Sept. 24, 2020), ECF No. 55.
II. LEGAL STANDARDS
“[S]ummary judgment is premature unless all parties have ‘had a full opportunity to
conduct discovery.’” Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). When the party opposing a summary
judgment motion shows that it “cannot present facts essential to justify its opposition,” a court may
(a) defer consideration of or deny the motion, (b) allow time for discovery, or (c) grant any other
appropriate relief. Fed. R. Civ. P. 56(d). The Circuit directs trial courts to grant Rule 56(d)
motions “as a matter of course.” Convertino, 684 F.3d at 99 (D.C. Cir. 2012).
A Rule 56(d) motion requires (1) a specific affidavit about why additional discovery is
necessary, (2) an explanation of why the evidence could not be obtained before the motion for
summary judgment, and (3) a showing that the information sought can be obtained through
additional discovery. Convertino, 684 F.3d at 99–100. Discovery is not required when “all the
facts required to decide the summary judgment issue are already in the record.” Curtin v. United
Airlines, Inc., 275 F.3d 88, 91 (D.C. Cir. 2001). If the evidence the responding party seeks through
discovery cannot not “cure[] the fatal flaws” in the party’s legal theory, then the trial court has
discretion to deny the motion. Trudel v. SunTrust Bank, 924 F.3d 1281, 1287 (D.C. Cir. 2019).
Put another way, if the court’s deposition of the motion would not change even if the responding
party successfully discovered all the information it sought in its Rule 56(d) affidavit, then the party
has not shown why additional discovery is necessary.
While the Court must construe Rule 56(d) motions “generously,” Convertino, 684 F.3d at
99 (quoting Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir. 1994)), filing
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a Rule 56(d) motion does not automatically entitle a party to more time, see United States ex rel.
Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19, 26–27 (D.C. Cir. 2014).
III. ANALYSIS
Bolton seeks discovery in two areas. First, he asks to conduct discovery into his allegations
that President Trump or other White House officials acted in bad faith by delaying prepublication
review and attempting to unduly influence classification decisions. Second, he asks to conduct
discovery into his allegations that the manuscript does not contain information properly classified
under the applicable executive order and agency procedures.
In his Rule 54(d) affidavit, Bolton explains that this information could not be obtained
earlier because discovery has not begun. Cooper Decl. at ¶¶ 22–26. And the affidavit meets
Bolton’s minimal burden to show that discovery can produce information about the truth or falsity
of the facts he seeks to establish. Id. at ¶¶ 27–29; see also id. at ¶¶ 30–71; Convertino, 684 F.3d
at 99–100. Indeed, the government does not contest that Bolton has met Convertino’s second and
third requirements: previous unavailability and present availability of the information sought.
The only issue, then, is whether Bolton has met the Convertino’s first requirement:
materiality. In this context, information is material—or necessary—when it could change the
outcome of the government’s motion for summary judgment. For reasons explained below,
evidence about bad faith conduct could faith could change the outcome of the motion for summary
judgment, but evidence about improper classification could not. Because the court concludes that
evidence of bad faith is material, it proceeds to define the scope of the discovery it will permit
Bolton to conduct.
A. Discovery Regarding Bad Faith Conduct
Bolton argues that he is entitled to discovery to establish thirteen necessary facts related to
alleged bad faith on the part of President Trump or other White House officials. To summarize,
8
he alleges that discovery will show that they intentionally delayed prepublication review and
attempted to unduly influence classification decisions. See Cooper Decl. ¶ 13. He argues that
this evidence will support an affirmative defense: prior material breach of the implied covenant of
good faith and fair dealing. Id. at 15. Additionally, in his answer, Bolton asserts a similar
affirmative defense: unclean hands.4 Answer ¶ 95. To establish unclean hands, Bolton must only
show bad faith conduct, see Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S.
806, 814 (1945), while to establish a material breach Bolton must prevail in a complex five-
balancing test. See Hansen Bancorp, Inc. v. United States, 367 F.3d 1297, 1312 (Fed. Cir. 2004)
(citing Restatement (Second) of the Law of Contracts § 241). Bolton’s unclean hands defense is
thus much easier to establish. And Bolton would be entitled to the same discovery to support
either defense. Therefore, the Court need only analyze whether discovery is necessary to support
the equitable defense.
If bad faith could be material to deciding the government’s motion for summary judgment,
Bolton is entitled to discovery to prove or disprove his unclean hands defense.
The government asks this Court to employ its equitable powers to impose a constructive
trust over Bolton’s book profits. But “he who comes into equity must come with clean hands.”
Precision Instrument, 324 U.S. at 814. That doctrine “closes the doors of a court of equity to one
tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however
improper may have been the behavior of the defendant.” Id.4
While Bolton does not expressly ask for discovery to support this affirmative defense, the Court properly considers
it for two reasons. First, the Court must construe Rule 56(d) motions generously. Convertino, 684 F.3d at 99. The
court should be particularly generous where, as here, the defendant had not filed an answer—and thus not could not
plead affirmative defenses—before the plaintiff moved for summary judgment. And evidence of bad faith would
support both affirmative defenses. Second, now that Bolton has asserted an unclean hands affirmative defense, the
Court cannot grant summary judgment to the government unless that defense fails as a matter of law. Nor could the
Court treat Bolton’s unclean hands defense as forfeited. See Daingerfield Island Protective Soc. v. Babbitt, 40 F.3d
442, 445 (D.C. Cir. 1994). Thus, the Court properly considers whether the unclean hands defense could affect the
outcome of the government’s summary judgment motion.
9
Because the government seeks an equitable remedy, Bolton may assert unclean hands
against the government’s claim for a constructive trust unless the government can show that the
defense is unavailable. The government cannot.
First, Bolton did not forfeit his ability to raise affirmative defenses by deciding not to sue
the government before he published his memoir.
The government argues that the Supreme Court’s promise of a “swift and sure remedy” in
Snepp v. United States cannot be reconciled with “an amorphous concept of ‘bad faith.’” Gov’t
Br. 20 (citing 444 U.S. 507, 516 (1980)). The government reads too much into that phase. “Swift
and sure” does not mean automatic. See, e.g., Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 878–
79 (1998) (describing arbitration as a “swift and sure” process). Indeed, the doublet arose in law
to describe “swift and sure” criminal punishments.5 See, e.g., Morgan v. State, 31 Ind. 193, 195
(1869). Compared to damages for breach of contract, a constructive trust provides a relatively
swift remedy because a court imposes it without a jury trial. See Chauffeurs, Teamsters & Helpers,
Local No. 391 v. Terry, 494 U.S. 558, 570 (1990). And a constructive trust provides a relatively
sure remedy because the amount the plaintiff will recover if it obtains its remedy is certain. See
Restatement (Third) of Restitution and Unjust Enrichment § 55 (2011). But nothing in Snepp
precludes a defendant from asserting affirmative defenses in an action for a constructive trust.
The government also argues that United States v. Marchetti limits Bolton to asserting bad
faith in a prepublication suit for a declaratory judgment. Gov’t Br. 19 (citing 466 F.2d 1309, 1317
(4th Cir. 1972)). Marchetti certainly says that when the government and a recipient of classified
5
Shakespeare may have coined the phrase in another context. See William Shakespeare, Macbeth act 3, sc. 1, l. 37
(“I wish your horses swift, and sure of foot.”).
10
information disagree about whether material can be published, the recipient has the burden of suing
the government:
[S]ince First Amendment rights are involved, we think Marchetti
would be entitled to judicial review of any action by the CIA
disapproving publication of the material. Some such review would
seem essential to the enforcement of the prior restraint imposed
upon Marchetti and other former employees. Because of the
sensitivity of the area and confidentiality of the relationship in which
the information was obtained, however, we find no reason to impose
the burden of obtaining judicial review upon the CIA. It ought to be
on Marchetti.
Marchetti, 466 F.2d at 1317 (emphasis added) (citation omitted). But Marchetti only discusses
the recipient’s burden to raise First Amendment challenges to prior restraint; in that situation, it
relieves the government of the onus of seeking an injunction to prevent publication. It says nothing
about waiving affirmative defenses. And indeed, in affirming the lower court’s ruling, the
Marchetti court also remanded for “such further proceedings as may be necessary if Marchetti
contends that the CIA wrongfully withheld approval of the publication of any information under
the standards we have laid down.” Id. at 1318. Such a remand would not be necessary if
Marchetti’s failure to sue prevented him from litigating the merits of his claims. The government’s
interpretation of Marchetti is not sound.
Furthermore, precedent in this Circuit supports the conclusion that a defendant may raise
an affirmative defense when he alleges that the government seeks to use a secrecy agreement
improperly. In Agee v. CIA, the government (as counterclaimant) sought a constructive trust over
the proceeds from former CIA clandestine officer Philip Agee’s books, arguing that he violated
his secrecy agreement with the agency. 500 F. Supp. 506, 507–08 & n.1 (D.D.C. 1980). Agee
raised two affirmative defenses in opposition to the government’s motion for summary judgment:
politically biased enforcement and unclean hands. Despite Agee’s campaign to reveal the
identities of hundreds of CIA officers and agents, see Haig v. Agee, 453 U.S. 280, 284–85 (1981),
11
Judge Gesell took Agee’s claims of political bias seriously, see Agee, 500 F. Supp. at 508–09. He
declined to impose a constructive trust because Agee had raised “unsettled factual issues that can
only come clear through time-consuming discovery.” Id. at 509. In addition to accepting Agee’s
politically motivated-enforcement defense, Judge Gesell rejected Agee’s unclean hands defense
on the merits. See id. at 508 (“In invoking the ‘dirty hands’ doctrine, it is necessary that the wrongs
complained of have a close nexus to the cause of action. There is no such nexus here.”). In
reaching the merits of the claim, Judge Gesell implicitly accepted that an unclean hands defense
could be available in a government suit to enforce a secrecy agreement. If the government could
not secure a constructive trust against Agee—whose blatant conduct endangered hundreds of
lives—without litigating the merits of his affirmative defenses, it cannot secure one against Bolton
until the Court satisfies itself that the government comes into court with clean hands. 6 For these
reasons, Bolton has not forfeited his affirmative defenses.
Second, equitable defenses are available against the government in contracts cases. To be
sure, when the government calls upon equity to enforce laws on behalf of its citizens, a defendant
may not rely on equitable defenses in the same manner as it could against an ordinary litigant.
Bartko v. SEC, 845 F.3d 1217, 1227 (D.C. Cir. 2017); see also Heckler v. Cmty. Health Servs. of
Crawford Cty., Inc., 467 U.S. 51, 60–61 (1984); United States v. Philip Morris Inc., 300 F. Supp.
2d 61, 75 (D.D.C. 2004) (collecting cases). But when the government seeks to enforce its own
contractual rights, a defendant may call upon equitable defenses when it can show “affirmative
6
A trio of cases from the Eastern District of Virginia offer some support for the government’s position, but the Court
finds them unpersuasive. See United States v. Snowden, No. 1:19-cv-1197-LO, slip op. at 10 (E.D. Va. Dec. 17, 2019);
Hr’g Tr. 24–25, United States v. Scherck, No. 1:12-cv-754-CMH (E.D. Va. Apr. 18, 2013) (ruling from bench); Hr’g
Tr. 19–20, United States v. Jones, No. 1:10-cv-765-GBL (E.D. Va. June 15, 2011) (ruling from bench). Each of the
cases overreads Snepp and Marchetti in the same way as the government does here, holding that a recipient’s failure
to sue before publishing effectively waives his affirmative defenses. The Court rejects that conclusion for the same
reason it rejects the government’s arguments.
12
misconduct.” See Rumsfeld v. United Techs. Corp., 315 F.3d 1361, 1377 (Fed. Cir. 2003);
Travelers Indem. Co. v. United States, 16 Cl. Ct. 142, 156 (1988).7 As Bolton alleges that the
government engaged in affirmative misconduct, he may assert his unclean hands defense against
the government’s efforts to enforce its contractual rights.
Third, strong public policy concerns favor allowing an unclean hands defense in actions to
enforce secrecy agreements. To hold otherwise would create tremendous moral hazard, because
otherwise the government would face effectively no consequences for conducting prepublication
reviews in bad faith. Nor does the potential for judicial review solve that moral hazard. While a
recipient of classified information could seek declaratory relief in some cases, unripeness may
prevent courts from weighing in until the relevant agency completes its review. See generally
Perry Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir. 2017); cf. Shaffer v. Def. Intelligence
Agency, 601 F. Supp. 2d 16, 24–25 (D.D.C. 2009) (holding unripe a complaint for declaratory
judgment to permit plaintiff to discuss classified information with his attorney to prepare for
potential Congressional hearing). The Court does not countenance any individual’s decision to
short-circuit prepublication review and publicly disseminate potentially classified information.
But nor does it wish to free the government from all consequences for potential misconduct. And
those consequences are reasonable because the defense only bars equitable remedies; if a defendant
proves unclean hands, the government may still proceed with legal remedies against him.
As Bolton may assert an unclean hands defense against the government’s claim for a
constructive trust, evidence of bad faith is material to his opposition to summary judgment.
Accordingly, Bolton must be allowed to conduct discovery into his allegations of bad faith.
7
Indeed, the government concedes that a bad faith defense is available in at least some contracts cases against the
government. See Gov’t Br. 21.
13
B. Discovery Regarding Improper Classification
Bolton also argues that he is entitled to discovery to establish necessary facts related to
improper classification. He alleges that discovery will show that (1) his book contained no
classified information or SCI, (2) his book contained no description of activities related to or
derived from SCI, that (3) any SCI or description of activities related to or derived from SCI in his
book “was not classified as such, or in process of a classification determination” when he
authorized publication, and (4) he lacked scienter. Cooper Decl. ¶ 10. Bolton argues that these
facts will establish he did not breach the agreements. Def’s. Br. 9.
If establishing these facts could be material to deciding the government’s motion for
summary judgment, Bolton is entitled to discovery to prove or disprove his theory. None of these
four sets of facts, however, is material.
First, additional evidence establishing whether Bolton’s book contained classified
information or SCI is not material because the Court must rely first on ex parte evidence in
evaluating whether information has been properly classified. And if that ex parte evidence is
sufficient, the court must rely solely on ex parte evidence.
In the context of disputed nondisclosure agreements, courts generally review classified
affidavits ex parte. See Stillman v. CIA, 319 F.3d 546, 549 (D.C. Cir. 2003) (directing the district
court to attempt to determine whether information is properly classified without assistance from
plaintiff’s counsel); McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983) (“We anticipate that
in camera review of affidavits, followed if necessary by further judicial inquiry, will be the norm.”
(emphasis added)). The government lodged classified declarations to show that Bolton’s
manuscript contained classified information and SCI. Notice of Lodging (June 17, 2020), ECF
14
No. 4; see Hr’g Tr. 9:19–11:9, 11:22–12:2, 16:1–16:6, 18:2–6 (June 20, 2020) (generally
describing content of declarations in open hearing), ECF No. 28.
Based on those declarations, the Court finds that Bolton’s manuscript contained SCI and
classified information, that the government classified some of the SCI and classified information
before Bolton authorized publication of his manuscript, and that the government classified the
information properly under Executive Order 13,526 and the relevant agency procedures. See also
Mem. Order 6. Under Stillman, those findings end the inquiry into whether the manuscript
contains properly classified information. Accordingly, Bolton’s access to the discovery would be
immaterial to the Court’s resolution of the case.
Nor, contrary to his arguments, does Bolton have a due process right to discovery on the
question of improper classification. While due process normally demands fully adversarial
proceedings, the Due Process Clause permits ex parte review of evidence in “extraordinary
circumstances” when disclosure of the evidence would have “substantial adverse consequences.”
See Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 967–68 (D.C. Cir. 2016).
Evaluation of top secret information presents a paradigmatic extraordinary circumstance because
disclosure of the evidence, by definition, would result in “exceptionally grave damage” to the
national security. Exec. Order No. 13,526 at § 1.2(a). Bolton, thus, has no due process right to
discover that evidence.
Second, evidence establishing whether Bolton’s book contains descriptions of activities
related to SCI would not be material because Bolton’s manuscript contains SCI and classified
information. That alone suffices to prove a breach of the SCI agreement.
Third, additional evidence establishing when the government classified information is not
material because the Court finds that Bolton’s manuscript contained classified information and
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SCI and that the information was classified or designated as SCI before May 2, 2020. See Hr’g
Tr. 10:22–24 (June 20, 2020) (stating that declaration establishes that “[t]hree of the examples,
including the example relating to TS/SCI were classified before Mr. Ellis’s review.”). Bolton
argues that he did not breach the agreements because the government classified information in his
manuscript only after he authorized publication. But the Court’s findings, based on the ex parte
declarations, foreclose that argument. Thus, no additional evidence could be material to summary
judgment.
Fourth, evidence establishing Bolton’s state of mind is not material because the
government does not need to establish scienter to prevail. See Mem. Op. 11–13 (holding that
except for violations related to “material that a recipient ‘ha[s] reason to believe’ is derived from
SCI,” the SCI agreements impose strict liability); id. at 23 (holding the classified information
agreement imposes strict liability).
In sum, Bolton’s access to additional evidence about the classified information and SCI in
his manuscript or his own state of mind cannot materially affect the Court’s resolution of the
government’s summary judgment motion. Therefore, Bolton is not entitled to discovery on those
topics.
C. Permitted Discovery
While the Court will permit discovery, it is aware that discovery in this case is likely to
implicate questions of executive privilege and national security. It therefore has the power and the
duty to control discovery to minimize potential constitutional issues. See Cheney v. U.S. Dist.
Court, 542 U.S. 367, 390 (2004). Thus, the Court will not grant Bolton free rein to conduct the
unbounded discovery he has proposed. See, e.g., Hr’g Tr. 73:25–76:2 (Sept. 24, 2020). Rather,
the Court will work to avoid a confrontation of constitutional dimensions by controlling the scope
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of discovery and minimizing the need for formal invocations of executive privilege. See Cheney,
542 U.S. at 390 (citing with approval United States v. Poindexter, 727 F. Supp. 1501, 1503–04
(D.D.C. 1989)).
Bolton may conduct discovery only on his allegations that President Trump or senior White
House officials acted in bad faith by intentionally delaying prepublication review and by
attempting to attempting unduly influence classification decisions.
As detailed in the order accompanying this opinion, the Court will permit discovery in
carefully controlled phases. The first phase shall consist of the least intrusive means of securing
evidence about Bolton’s bad faith allegations from the most junior officials who are likely to
provide useful information. Each subsequent phase may include more senior officials or more
intrusive means of discovery. Bolton may not commence discovery until the Court reviews his
discovery plan, and Bolton must return to the Court to seek authorization to begin each phase of
discovery. The Court will grant Bolton authorization to carry out, at most, one phase of discovery
at a time.
Additionally, as detailed in the order accompanying this opinion, the Court will direct the
parties to confer on a process for addressing privilege objections and will offer the government the
opportunity to seek a protective order to govern the handling of discovery materials.
IV. CONCLUSION
Because Bolton argues that the government acted inequitably, the Court must be satisfied
that the government has clean hands before it can impose a constructive trust. For Bolton to
support that argument, he must be allowed limited discovery.
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Therefore, by separate order the Court will GRANT Bolton’s Rule 56(d) motion and
DENY WITHOUT PREJUDICE the government’s motion for summary judgment. The
government may renew its motion after the conclusion of discovery.
/s/ Royce C. Lamberth
Date: January 14, 2021 Royce C. Lamberth
United States District Judge
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