Subpoena for Bolton’s unpublished book would likely face fierce resistance

Intellectual property rights among issues that could entangle legislative branch, publisher

The forthcoming book by former national security adviser John Bolton could lead to a protracted fight if it is subpoenaed in President Donald Trump’s impeachment trial. (Win McNamee/Getty Images file photo)
The forthcoming book by former national security adviser John Bolton could lead to a protracted fight if it is subpoenaed in President Donald Trump’s impeachment trial. (Win McNamee/Getty Images file photo)
Posted January 28, 2020 at 11:30am

Congress could subpoena the manuscript of former national security adviser John Bolton’s forthcoming book on his time in the White House, but such a move could raise concerns about intellectual property rights and lead to a fight between lawmakers and Bolton and his publishers.

“Either [chamber] of Congress has the ability to subpoena records, including unpublished manuscripts,” said Chris Armstrong, the former chief oversight counsel for the Senate Finance Committee.

But Armstrong, who now represents clients involved in congressional investigations at the D.C. lobbying firm Holland & Knight, added that congressional subpoenas are “issued within a political environment” and often meet stiff resistance — especially when the release of the requested information affects subjects’ bottom line.

That would certainly be the case for Bolton, whose 528-page insider tell-all, “The Room Where It Happened: A White House Memoir,” is scheduled to hit bookshelves on March 17.

Politicians understand the harm subpoenaing an unpublished book and entering it into the Congressional Record — where it would be on display for the entire public, free of charge — would have.

“Members are aware of the inherent unfairness of taking this book and obliterating its fair market value,” Armstrong said.

The manuscript leaked to the New York Times over the weekend and contains passages that directly challenge President Donald Trump’s claims that he never told anyone the hold on military aid to Ukraine was linked to Kyiv announcing anti-corruption investigations into the Bidens and the Crowdstrike conspiracy theory that Ukraine, not Russia, interfered in the 2016.

Democrats have not said whether they would subpoena the manuscript, but an aide working on the trial said Monday their focus would be on obtaining the ex-national security adviser’s testimony and documents, including personal notes, through the Senate trial.

 

“Our expectation is that a subpoena for John Bolton would not only be for his testimony but would also be for his notes,” the aide said, noting Bolton is known for taking contemporaneous notes and those were likely the basis for the account he provided in his manuscript.

House Intelligence Chairman Adam B. Schiff indicated in a CNN interview Monday that he could not yet answer whether Democrats would seek the manuscript, but added that Bolton’s notes were more important.

Some Republican senators have already said they want access to Bolton’s manuscript.

“That’s a minimum amount that we should actually be able to get and I am encouraging the White House, anybody that I can talk to to say, ‘That manuscript is pertinent and we should get access to that manuscript to see what they’re actually saying,’” Oklahoma GOP Sen. James Lankford   told The Oklahoman on Monday.

Sen. Lindsey Graham of South Carolina tweeted Tuesday his endorsement of Lankford’s proposal.

Former Republican House Oversight Chairman Tom Davis of Virginia said lawmakers can “certainly” demand access to Bolton’s manuscript, but it is not as important as having Bolton in to testify himself.

Still, the manuscript could be a useful roadmap for lawmakers to ask questions of the former Trump adviser.

“You’d rather get him,” Davis said. “Now, you could get the manuscript too and cross-examine him with it. But it looks like time is of the essence at this point, and you have to take what you can get.”

Lawmakers would have three avenues to try to obtain the manuscript through a compulsory process if they choose to go down that path, Armstrong said: They could subpoena the White House, Bolton’s publisher, or the former national security adviser directly.

“I’d expect both Ambassador Bolton and the publisher would use every tool available to resist it,” Armstrong said. “Ideally you and the entity who issued the subpoena would enter into a negotiation to find some way to resolve it without harming the client and his bottom line.”

A subpoena for Bolton’s book manuscript would be virtually unprecedented, Armstrong and others told CQ Roll Call.

During the House’s Iran-Contra investigation in the 1980s, a dispute over Ronald Reagan’s personal diary and whether it was subject to executive privilege claims loomed large.

“Reagan was maintaining his diary in large part to write his post-presidential memoirs,” said Mark Rozell, an expert on executive privilege and the dean of the Schar School of Policy and Government at George Mason University.

Of all the documents Congress could subpoena from the White House, Reagan believed his personal diaries had the most legitimate claims to executive privilege. He considered fighting the House over the diaries to protect the legal prerogatives of the executive branch, but he eventually voluntarily submitted them largely because he believed they contained nothing incriminating, Rozell said.

“The president ultimately decided that being out front of the story and being as transparent as possible was in his best interests. Imagine that,” he said.

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