“The horse is not just out of the barn, it is out of the country.”

The United States District Court for the District of Columbia this morning released a stunning memorandum which denied the administration’s request for a temporary restraining order and preliminary injunction enjoining the publication of Bolton’s book on Tuesday of next week. (A copy of the memorandum is at https://context-cdn.washingtonpost.com/notes/prod/default/documents/0d1d0961-08ba-49b6-9806-605a2381fc7c/note/ce88dcd2-fcc7-4b29-9961-3ff431869c4a.#page=1)

Why is it stunning? It’s stunning because the memorandum explicitly says that Bolton violated the law, that there will likely be irreparable harm to national security because of it, and that the court can’t issue an injunction because it is *already too late for an injunction to do any good*. And, if the court is right in all three regards, it’s another example of the administration’s utter incompetence at manipulating the levers of the administrative state and the court system.

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Ordinarily, the government cannot enjoin publication of books or other matter prior to publication. If the publication was for whatever reason unlawful, it can seek damages and punishment after the fact, but it cannot stop the publication in advance. This was decided by the Supreme Court half a century ago, and it’s never been seriously revisited since.

That said, there is an exception for current and former government employees who held security clearances. Those current and former employees are required to go through a prepublication review process, in which a government employee looks at the thing they’re trying to publish and certifies that it doesn’t contain any classified material.

Bolton submitted his book for the prepublication review process. The review resulted in a set of requested edits, which he made, but otherwise went smoothly; the reviewer was satisfied. The administration, however, was not, and brought in a different reviewer (with no previous experience doing prepublication review) to review it. [To me, this smacks of getting yourself a new referee when you don’t like the results from the first one, and is inherently suspicious behavior]. Bolton, in frustration, ordered his publisher to publish the book anyway.

The administration, late last week, filed a motion with the US District Court for the District of Columbia asking the court to order Bolton to pull publication of the book on the grounds that the book contains classified material and that allowing it to be published would endanger national security.

The Court held two hearings yesterday — — one a public one, one a closed door one that would allow it to examine, in detail, the administration’s allegation of harm to national security. It issued a ruling this morning.

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In order to get a temporary restraining order under these circumstances, the administration basically had to demonstrate three things:

(a) when the underlying case (the allegation that Bolton violated the law and jeopardized national security) is eventually heard, the administration is likely to win. (It makes no sense to issue a restraining order prohibiting activity the court thinks will eventually be found to be legal, and a court is generally not going to decide the underlying question in three days without a trial).

(b) the publication of the book would cause irreparable harm

© an injunction would be able to prevent that harm

The court walked through all three.

First, the court agreed that the administration is likely to win on the merits. *Even though the administration’s behavior regarding the prepublication review seems scummy to me*, Bolton had another option: he could have sued to force the administration to authorize release. That would have been the proper mechanism. Unilaterally proceeding with publication without approval was *not* the right way to go about it, and it will quite possibly result in him forfeiting his advance and royalties, going to jail, or both.

Second, after a secret review, the court agreed that the publication will likely damage national security by releasing classified information, and that this is an irreparable harm because once the harm is done it can’t be undone.

But, the court still didn’t issue an injunction, because what would that achieve? The book has already been printed. It’s already in Amazon’s warehouses and in boxes in bookstores waiting to be opened on Tuesday. More than 200,000 copies of the book have already been shipped, including several thousand shipped *outside the country* (where any attempt to claw them back would be unenforceable). Review copies have already gone out and been read by media representatives. There’s no way to prevent, for example, someone in one of these bookstores from opening the box, using their cell phone to take a picture of every page, and uploading this to the internet.

It’s just *too late*.

The clear implication of this is that the same motion brought a month earlier would have succeeded, because it wasn’t too late then.

I don’t understand why the administration keeps failing at basic procedure this way. This is the third high profile instance of an easily avoidable procedural fail *this week*. Is it incompetence? Is it hubris? Is it deliberate self-undermining for some political purpose I don’t understand?