John Bolton

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John Bolton has been charged by a grand jury in the District of Maryland with 18 counts of mishandling classified information in violation of the Espionage Act, 18 USC 793. He is charged with eight counts of unlawfully transmitting national defense information and 10 counts of unlawfully retaining it in his possession. The information Bolton is charged in connection with was classified at the secret and top secret levels.

Donald Trump weighed in: “I think he’s a bad person,” he said of his former National Security Advisor.

The indictment is entirely different from the two we’ve seen against Jim Comey and Letitia James out of the Eastern District of Virginia. For one thing, as we discussed earlier this week, the U.S. Attorney in Maryland is a career prosecutor. But she didn’t go into the grand jury to obtain the indictment. It’s signed off on by two senior prosecutors in her office as well as lawyers from DOJ’s National Security Division. Instead of the factually deficient indictments we’ve seen in the other cases, this is the sort of detailed indictment we are used to seeing in a serious matter. The factual predicate for the charges against Bolton is 20 pages, laid out in detail by professional prosecutors. Each count appears in a graph, as the first eight do here, with details about the documents involved.

That’s not to say that the case against Bolton will inevitably succeed, but it does appear to be a strong case. The allegations are serious. The indictment lays out an ongoing pattern by Bolton of using personal email accounts to transmit information to two unnamed relatives while he was with the government, apparently diary-type entries accompanied by communications to the two that suggested Bolton was compiling information to be used in future writing projects. Bolton has bigger problems than Comey and James, based on the evidence laid out in the indictment.

In one of the most damaging sections in the indictment, there is a revelation that in July of 2021, Bolton’s representatives advised the FBI his email account had been hacked, and he suspected Iran was behind it. The indictment goes on to state Bolton never told the FBI he had been sending classified information in emails using this account, nor did he tell them that all of that information was now in the possession of whoever had done the hack.

The major issue prosecutors face in a case like this is proving the defendant’s state of mind. They have to establish beyond a reasonable doubt that the defendant acted intentionally and willfully. It has to be more than negligence. That will be a key issue in this case, and because it’s a dispute over the facts, it will be up to a jury to make that decision.

Unless Bolton decides to plead guilty, that’s likely where this case is headed. In a similar situation involving allegations that he shared information with a woman he was having an affair with, who was also his biographer, General David Petraeus pled guilty during the Obama administration to one misdemeanor count of unauthorized removal and retention of classified material. The charge was a misdemeanor, and he got two years of probation. At least as of now, there is no reporting on whether Bolton was offered a similar deal in advance of indictment, although it seems unlikely given the moment. Each of the charges against Bolton is a felony. He faces a maximum penalty of ten years in prison for each one

Bolton’s defense lawyer, Abbe Lowell, issued a statement: “The underlying facts in this case were investigated and resolved years ago. These charges stem from portions of Amb. Bolton’s personal diaries over his 45-year career – records that are unclassified, shared only with his immediate family, and known to the FBI as far back as 2021. Like many public officials throughout history, Amb. Bolton kept diaries – that is not a crime. We look forward to proving once again that Amb. Bolton did not unlawfully share or store any information.”

Bolton also issued a statement: “For four decades, I have devoted my life to America’s foreign policy and national security. I would never compromise those goals. I tried to do that during my tenure in the first Trump Administration but resigned when it became impossible to do so. Donald Trump’s retribution against me began then, continued when he tried unsuccessfully to block the publication of my book, The Room Where It Happened, before the 2020 election, and became one of his rallying cries in his re-election campaign. Now, I have become the latest target in weaponizing the Justice Department to charge those he deems to be his enemies with charges that were declined before or distort the facts. ... These charges are not just about his focus on me or my diaries, but his intensive effort to intimidate his opponents, to ensure that he alone determines what is said about his conduct. Dissent and disagreement are foundational to America’s constitutional system, and vitally important to our freedom. I look forward to the fight to defend my lawful conduct and to expose his abuse of power.”

There is undoubtedly truth to the allegation that Donald Trump wanted Bolton prosecuted. But the intervening layer of professional prosecutors here, people who assessed the case and the evidence and decided there was enough to move forward, may make it difficult to win a selective prosecution argument. In the Comey and James cases, experienced prosecutors declined to bring the cases, and the U.S. Attorney sacrificed his job for principle. The cases were only brought because Trump dropped in a loyalist to replace him. Here, unless Bolton has some evidence that these prosecutors did not proceed professionally, he may not have a winnable legal argument.

Nonetheless, there is a disturbing note of irony here. Bolton is charged with possessing information relating to the national defense that he knew could be used to injure our country if transmitted to a foreign country. It’s impossible to ignore the specter of Pete Hegseth’s Signal chat, with its release of information while pilots were still in the air, hanging over all of this. Why charge Bolton and not Hegseth, the sitting Secretary of Defense? It looks like we have two layers of justice, one for friends of Donald Trump and another for his enemies.

We’ll learn more about the evidence in the Bolton case as it moves forward. But there is no way around the fact that Donald Trump’s interference in federal prosecutions has undercut the integrity of the criminal justice system. The notion that prosecutors would trump up charges to suit the president used to be unthinkable. Trump has put it in play. Even when a meritorious case is brought, questions will linger. That’s why presidents stay out of prosecutions. That’s why prosecutors are schooled to avoid conversations with politicians, even ones they know, if they could create the appearance of impropriety. Politics has no place anywhere near prosecutions. The damage Trump is doing will take years to repair.

We’re in this together,

Joyce