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Former National Security Advisor John Bolton leaves the stage after discussing the “current threats to national security” during a forum moderated by Peter Feaver, the director of Duke’s American Grand Strategy, at the Page Auditorium on the campus of Duke University on February 17, 2020, in Durham, North Carolina (Melissa Sue Gerrits/Getty Images).
John Bolton certainly understood the implications of his actions.
As a former national security adviser, Bolton was undoubtedly aware that sharing classified information with individuals lacking security clearances could breach the Espionage Act. His deep-rooted expertise in national security would have highlighted to him the potential jeopardy his actions posed to U.S. safety. Recently, Bolton voiced criticism towards Trump officials for discussing a military operation in Yemen on an insecure public app, Signal, which accidentally involved a journalist. Contrastingly, while the Hegseth group may have acted negligently, Bolton’s actions appear to be deliberate.
The federal grand jury in Maryland brought an 18-count indictment against Bolton, accusing him of utilizing personal email and encrypted messaging to send national defense details from his diaries to his family. To complicate matters, one of these email accounts was compromised by Iranian hackers in 2021. Moreover, Bolton failed to disclose his actions during the investigation.
The Department of Justice initially launched a probe into Bolton’s actions during Trump’s tenure but abandoned it when Biden assumed office. In light of Bolton’s persistent criticisms of Trump, especially in his 2020 memoir “The Room Where It Happened,” where he lambastes Trump’s foreign policy and questions his aptitude for presidency, Bolton found himself on Trump’s list of adversaries, as someone Trump sought to undermine.
For those critical of Trump, Bolton appears to be a casualty of Trump’s retribution, drawing parallels with the indictments of former FBI director James Comey and New York State Attorney General Letitia James. Trump’s inflammatory remarks about Bolton and his insistence on an indictment bolster the narrative that Bolton is being pursued for political motives by a partisan Department of Justice. Bolton is likely to argue, akin to Comey and James, that he is being unfairly prosecuted by a spiteful president, representing a flagrant case of malicious legal action by Trump’s allies in the Justice Department, and will advocate for his indictment’s dismissal without proceeding to trial.
But charging the government with malicious prosecution requires showing that the prosecutor lacked probable cause to bring the charge. And while such a showing may be made in the Comey and James cases, it most assuredly cannot be made about the Bolton charges. A cursory reading of the lengthy indictment contains ample evidence of Bolton’s wrongdoing. It portrays a man willing to risk his country’s security not for any laudable principle or a belief that the end justifies the means but for the tawdry and pecuniary motive to later sell a book he planned to write.
Indeed, why did Bolton refuse to testify at the House impeachment inquiry into President Trump? Was it because, as he claimed, his testimony “would have made no difference”? Was it because he felt his testimony would be superfluous? Or was it because by testifying he would be giving a preview of parts of his book and would make the book less marketable?
Even assuming Bolton can make a convincing argument that he is the victim of a weaponized Justice Department, should that matter? Or should the public see Bolton as someone who, if the allegations in the indictment are true, grossly abused his office and undermined national security, in effect to make a buck?
Let’s be clear about this. Bolton, to keep an accurate record, made notes on his computer in real time of events happening at the National Security Council and then sent the notes to the computers of his (trustworthy) wife and daughter, thereby removing them from his own system and preventing government investigators from learning that he was exposing government secrets to persons who had no clearance to receive such information.
The scandal arising from Bolton’s conduct should be a teachable moment for anyone planning to go into public service or is already there. There are sound reasons why professional ethics rules seek to create a lengthy timeline between departing from government service and entering the private world of business or client representation. The rules seek to prevent conflicts of interest between public and private interests.
But Bolton, a Yale-educated lawyer, knew well and disregarded the rules for government service. He wasn’t simply keeping a diary of his government service so that in the future he could accurately describe his important work to his grandchildren, although that too probably would have been wrong. No. Bolton intended to write a book, for which he reportedly got a $2 million advance.
Yes, it may be true that Bolton’s book was vetted by the CIA to ensure that nothing in the book could compromise national security. But still! If one enters public service, particularly public service that relates to national security, one needs to be willing to take a virtual bullet to honor that oath. We have no idea why Trump apparently retained classified documents at Mar-a-Lago after his presidency was over – maybe to write a book, or maybe to protect himself if he was later indicted. However, Bolton was already keeping a diary record for himself when his Trump presidency service had just begun, and the reason for Bolton keeping that record is self-serving.
And, yes, Bolton may be getting a raw deal because the president hates him. But if he’s let off the hook in court due to Trump’s pernicious role in the case, what message will that send to aspirants to government service? That maybe it’s worth taking a chance, but be more careful than Bolton?
One of the principal functions of criminal law is to deter others from engaging in criminal conduct. That’s the key message from the Bolton case, which we should be mindful of.
Bennett L. Gershman is a former New York prosecutor and Distinguished Professor of Law at Pace Law School. He is the author of “Prosecutorial Misconduct.” Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Petrillo, Klein & Boxer. He is an adjunct professor at both Fordham and Cardozo Law Schools and is the author of “Blindfolds Off: Judges on How They Decide.”
This is an opinion piece. The views expressed in this article are those of just the author.