I should have zero sympathy for former United Nations ambassador and National Security Adviser John Bolton, who was just indicted for a whopping 18 counts of mishandling classified information — more than three times the number of counts in similar Espionage Act prosecutions over the past 15 years. When I did advocacy work for Chelsea Manning, Bolton suggested that if found guilty, she should be punished by death. In 2013, Bolton famously said of another client: “My view is that [Edward] Snowden committed treason, he ought to be convicted of that, and then he ought to swing from a tall oak tree.”
My cup of schadenfreude should be running over right about now. It is not, however, because President Donald Trump’s trademark rambling and ill-advised statements could very well tank the criminal case against Bolton. Specifically, Trump’s words more than suggest that the prosecution — whatever its merits might be — is selective and vindictive, a factor that could end the case well before it reaches plea negotiations or a jury trial.
In August I wrote about the chilling effect created by the Trump administration targeting Bolton, but it’s worse than I imagined. I correctly predicted that the armed raid of Bolton’s house was part of an investigation into whether he illegally possessed or shared classified information in connection to his memoir. I was also right that charges would be brought under the draconian Espionage Act, which I’ve decried as the Justice Department’s tool of choice in going after press leaks it doesn’t like — a tool that would soon be deployed against perceived “enemies.”
What I didn’t predict was that Bolton’s alleged oversharing would include diary-like entries containing classified information that he shared with family members, whom of course had neither security clearances nor a need to know. I thought any document mishandling by Bolton would be related to careless retention of classified information (which forms ten of the counts) but not careless transmission of it (which forms the other eight) given his deep knowledge of the government’s secrecy regime, access to military-grade encryption and murderous commentating about Manning and Snowden.
If Bolton’s charges stem from sharing classified information with his wife and daughter, as is being reported, his conduct seems all the more egregious in the aftermath of Defense Secretary Pete Hegseth’s notorious disclosure of closely-held attack plans in “Signalgate” group chats — one of which included his wife, brother and divorce lawyer. (Pro-tip for leaky senior officials and the insecure lawyers who cozy up to them: If you’re trying to impress your friends and family with your security clearance, this is an extremely fraught way to compensate — and one that Trump can end with a quick snip.) Bolton’s current predicament is only exacerbated by his sanctimonious criticism of Trump officials for using Signal — a point that boomerangs if Bolton was, as alleged, transmitting national defense information over his personal Gmail account and commercial messaging apps. The icing on the cake of this security debacle is, of course, if Iranian hackers in fact breached these communications.
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There are two things working in Bolton’s favor: First, he has the makings of a solid motion to dismiss for selective and vindictive prosecution. These dispositive motions are rarely granted, as I know from my experience representing Snowden, Thomas Drake, Daniel Hale and other whistleblowers in national security prosecutions under the Espionage Act. (If verbiage about “selective and vindictive” is ringing bells, it’s perhaps because a federal district court judge denied Trump’s motion to dismiss the election interference case for vindictive prosecution.) Although rarely granted, motions to dismiss for selective and vindictive prosecution are still routine pretrial fare in Espionage Act cases in order to preserve the issue for appeal.
Bolton’s case, however, might be the rare instance in which a selective and vindictive motion is successful. Trump’s public statements about Bolton have been numerous, vociferous and laced with antipathy.
Bolton’s case, however, might be the rare instance in which a selective and vindictive motion is successful. Trump’s public statements about Bolton have been numerous, vociferous and laced with antipathy. I’m not talking about the president’s pot-kettling insults in which he called Bolton “dumb,” a “wacko” or “a disgruntled boring fool.” I’m talking about Trump’s own words when he learned Bolton had written a tell-all book, describing Bolton as “treasonous” and calling for his imprisonment: “What he did is he took classified information, and he published it during a presidency [sic]… I believe that he’s a criminal, and I believe, frankly, he should go to jail for that.” He issued tweets to similar effect. On top of a colorable selective and vindictive motion, Bolton may also have legal ethics claims for unfair pre-trail publicity and conflicts of interest.
The second thing working in Bolton’s favor is the quiet truth that there’s a two-tiered system of justice when it comes to the disclosure of classified information: One for those with power and one for everybody else — a phenomenon I’ve written about for more than a decade.
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Retired Army General and CIA Director David Petraeus pleaded guilty to a minor misdemeanor and received two years of probation and a fine for illegally disclosing to his biographer-turned-mistress information that was classified at the highest level: Military code-words, war strategy, intelligence capabilities, diplomatic discussions and detailed conversations with the president. He additionally lied to the FBI about his disclosures.
Former National Security Adviser Sandy Berger, who smuggled classified documents out of the National Archives and mutilated some of them, also received two years of probation and a fine. Hillary Clinton never faced prosecution for running her secretary of state work emails, which included classified information, through a private account on an unsecured home server. The cases against Biden and Trump also imploded due to mental fragility (Biden) and reelection (Trump) — two shaky reasons that could have easily been interchangeable.
In ordinary times, Bolton would get a sweetheart plea deal along the lines of what Petraeus received. These, though, are not ordinary times. John Bolton may or may not have mishandled classified information, but what’s not at debate is that Trump loathes him, has vowed multiple times to punish him and is basking in the glory of doing so. Bolton is not a sympathetic guy on a human level. But if our crumbling democracy means anything, even insufferable warmongers deserve a fair shake.
