Judge Lambert, John Bolton, Government discussed on The Lawfare Podcast

Automatic TRANSCRIPT

Judge Lambert actually asked the government lawyer today win were the six passages classified an my understanding of the answer? Correct any of differently was. Three of them were classified before Michael Ellis's. Recent review. And apparently they should have been picked up by the career official. Who is reviewing it? One of them was classified by LS during his review before he learned how to classify and the other to the lawyer had not yet out. Who classified them and. It was unknown at and that's a bit odd, but they are claiming that at least three passages had been previously classified and should have been caught in this process. One interesting question that is. If that cell. Let's say Lambeth says that that's right. At least those three cases were legitimate. Classifications what follows from that and what Jack is already suggested is. A preliminary injunction here probably does not because you can't stop the the damage. That's already been done so all that really leaves is whether the government could at some later point get a constructive trust for the prophets. The John? Bolton will realize on this book and they're the fact that he didn't know. It was classified and had no reason was actually told that it wasn't. I think would probably make it pretty hard for the government to collect his profits, even if the courts decided that they would defer to the government's classification decisions. Can you a little bit more about your read on how Lambert Saga today and I also think it would be useful on the listeners in on what Lambert's background is because the fact that Lambert was given. This case is actually quite significant. Think maybe Ben would be better to speak to Lambert's background and character. He's known as a very a somewhat iconoclastic judge, a judge who let's in his opinions, and often in the courtroom is very candid about his views and can be very very sharp with government lawyers in particular his politics I think are eclectic in not obvious they're. They're difficult to parse sometimes and I don't think he has any particular philosophy other than as you. He has publicly suggested that there's over-classification and over deference to the government. On classification. Today I thought he was actually. Not really tipping his hand, he's really trying to gather information. figure all this out something. That's very difficult to do in these situations where all the briefs are being. Sort of throw. It would be bad enough in a in an ordinary situation where you're getting paper copies of the brace in your courtroom, but it's all sort of electronic filings just hours before an argument with classified and unclassified. Affidavits took Jack Anna hours to make some sense of it. He has to do much more than that, and it's difficult so I think he was actually playing the role of district. Court judge, best place, which is just trying to figure out the facts. Yeah, I agree with that characterization he was. Very candid about how hard it would be for him to second guess, determinations of classified information by these career intelligence officials, and he seemed it seemed to me in his questioning Bolton's lawyer Chuck Cooper. He seemed to me at least atmospherically a little skeptical of Bolton's claims that the contract was breached here and Cooper an and he spent a lot of time going through the the nondisclosure agreements. But there's a long way to go in this case in terms of figuring out the facts of what happened in this classification process, and really parsing these these agreements. Before we have any sense of whether Bolton's going to be able to keep the money or whether the government's going to get it. I, mean the IT. Typically the government does not have a hard time in collecting royalties on someone publish something in breach of these nondisclosure agreements It hasn't been hard. They just collected some slowdowns profits on the book. He published and I. I think that the betting money would have to be that ultimately Bolton will. The government will be able to get his prophets, but this case seems much more complicated and difficult for the government, because of these untoward processes, because the contracts have some loopholes in them so I just think it's too early to tell and and Lambert really ultimately didn't tip his hand today. Let me. Just add a couple notes about lambeth. Which is among federal district judges. He's probably one of the very small number with the most experience with classified information, and the reason is that he was the presiding judge of the foreign intelligence surveillance court a for a number of years, and in addition I I may be getting this wrong, but I don't think so I believe he had some of the. Some of the Iran Contra defendants. Some of the lesser known Iran Contra defendants and had to do a very large quantity of litigation under the classified information procedures act in connection with those cases, take that with a grain of salt, but I believe that's correct, and so this is a judge with a lot of granular experience with classified materials and sort of unusual amount for for a district judge, and who's also as Mardi rightly points out notably tough on government lawyers. He used to run back when he was at the US Attorney's office. He ran the civil side of the of the. US Attorney's office in Washington, and so he kind of has a a very high standard that he holds a government lawyers to in his courtroom, and so he's you put that together that he's you know. Sophisticated about classified information has a lot of experience with classified information, and takes a certain amount of pleasure in giving government lawyers, a hard time and I could see I mean. Mean I think this is a very good. If you're Chuck Cooper who represents John Bolton and you get Royce Lambeth on the wheel. On this case, you are very pleased with that one other point just to draw on Marty's point. You know if if they're contention, is that three of these are later up? Classifications and only three of these passages were classified in real time. And the government official. WHO reviewed?.

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