Today, William Barr’s Department of Justice is busy making an unprecedented argument in federal court to halt the publication and distribution of John Bolton’s new tell-all book. The court appearance is the last gasp of the Trump administration’s emergency appeal for prior restraint, which deploys a set of novel legal arguments that First Amendment experts say have never been attempted before. Their strategy appears to be to win an injunction against Bolton as a private citizen, then apply that injunction to booksellers and newspapers that have already been furnished with a copy.
It’s a bend-over-backwards attempt to stop Bolton from divulging the juicy details of his 16-month tenure in the White House as National Security Adviser—information he refused to divulge to Congress during its four-month impeachment inquiry. Nevertheless, most of its juiciest parts have already been revealed in publications that secured advance copies of the manuscript.
There’s just one problem with Barr’s plan, however: Nancy Pelosi could publish Bolton’s book today—and so could Alexandria Ocasio-Cortez, Ayanna Pressley, or any other member of the House—and there’s absolutely nothing that Barr, Trump or anyone else in the White House could do to stop them.
The reason is because of the Constitution’s Speech or Debate Clause. “A member of either chamber could enter the book into the Congressional Record” by reading it aloud, says Georgetown University Law Professor Josh Chafetz. The congressional privilege for this “is absolute,” adds Chafetz, meaning that “no court can enjoin congressional speech…and no court can punish it, either.”
In fact, something similar occurred in 1971, when Senator Mike Gravel entered most of the Pentagon Papers into the Congressional Record as part of a subcommittee hearing.
If a Congresswoman did the same today—and thus circumvented the DOJ’s argument in court—it would be a presumptive win for the American people. But it would be a big fat loss for Bolton. The irony of the confabulated Congressional Record idea, points out Norm Eisen, the legal scholar and impeachment counsel for House Democrats, is that Bolton’s manuscript would suddenly become available to the public free of charge. Rather than read the whole book into the Congressional Record, Congress would likely have to subpoena the manuscript—and Bolton would likely resist it, re-creating in miniature the fight for Bolton’s impeachment testimony all over again. “Bolton would not go along with that, because he is clearly in it for the money—there can be no other explanation for his persistent refusal to testify,” Eisen says. “He wouldn’t see a penny.”
If Ocasio-Cortez, for instance, attempted to introduce Bolton’s book into the Congressional Record, it’s possible the White House would object under the House provisions that regulate publicizing classified material. Those provisions are outlined in a protocol known as Rule X. But those provisions pertain only to classified information gleaned from the Intelligence Committee, and that rule allows for publication of certain text without consent from the White House. Plus, “the only authority that can enforce Rule X…is the House itself,” Chafetz says. A member who did this might be disciplined by the party leadership. But, he says, “it’s hard to see the Democratic majority going after a Democrat who released Bolton’s book.”
A number of national security officials have already chastised Bolton for appearing to sacrifice his testimony in favor of his book deal. So perhaps House Democrats could consider this as a not-so-subtle way to upbraid him. It all raises an important question: Where is Representative Ocasio-Cortez, and is she tied up tomorrow afternoon?
