But a day later, the department significantly escalated its efforts by asking for a restraining order and injunction against Mr. Bolton to try to halt further distribution of his book. It also submitted a declaration by a National Security Council official, Michael T. Ellis, saying the manuscript contained classified information, including an exceptionally restricted category that could reveal intelligence sources and methods.
That escalation of the case into an 11th-hour attempt to stop further dissemination of the book raised not just practical questions but constitutional alarms. The Supreme Court has ruled that the First Amendment only rarely permits the government to gag speech. (A group of news organizations, including The New York Times, submitted a “friend of the court†brief arguing that such “prior restraint†on publication would be unconstitutional.)
The judge opened the hearing with a suggestion that he may be inclined to agree with Mr. Cooper about the request for an order. “The horse, as we used to say in Texas, seems to be out of the barn,†Judge Lamberth said.
But he also will be asked to decide other matters — like the government’s request to seize Mr. Bolton’s $2 million advance — and asked why Mr. Bolton had walked away from the prepublication review and did not tell the government that he had told Simon & Schuster to start printing.
Mr. Cooper, however, argued that Mr. Bolton had lived up to his obligations under the spirit and text of the agreements his client signed. He stressed that his client had worked with Ellen Knight, the National Security Council’s senior director for prepublication review, and made numerous changes at her request. She told him in late April that she had no more edits.
But the White House never sent a formal letter saying the process was complete — something Mr. Cooper argued was unnecessary under the version of the agreement his client signed — and it turned out that it had begun a second review by Mr. Ellis without telling Mr. Bolton until this month. Mr. Ellis submitted an affidavit this week claiming that he had found at least instances of six classified information in the book, including some from the exceptionally restricted category.
Mr. Cooper has portrayed Mr. Ellis’s intervention as politically motivated and illegitimate, and he made much of the government’s acknowledgment, in a revised complaint on Friday, that Mr. Ellis had received no training in how to review classified information until this month — after he had studied the manuscript and identified the material he said was classified even though Ms. Knight had not considered it to be.
