Don’t lump Bolton charges in with flimsy cases against Comey and James
The government will have to back up its allegations with evidence at trial, but Trump’s vengeance crusade means a lot is in doubt.
By Barbara McQuade
At first blush, it would be easy to treat the new indictment against John Bolton as another case of payback disguised as justice. But this one differs dramatically from recent cases against the president’s perceived enemies.
On Thursday, the Justice Department announced charges against the former national security adviser. The indictment includes 18 counts under the Espionage Act—eight alleging Bolton transmitted classified national defense information to individuals unauthorized to receive it and 10 accusing him of unlawfully retaining that information after his government employment ended. The Wall Street Journal reported that the individuals are Bolton’s wife and daughter.
In contrast to the indictments filed against former FBI Director James Comey and New York Attorney General Letitia James, the case against Bolton appears to be one any reasonable prosecutor would bring. It also lacks many of the red flags that suggest the Comey and James indictments were filed more for political reasons than to advance any legitimate federal law enforcement interest.
First, the allegations against Bolton allege serious crimes and appear to be based on strong evidence. Unlike the barebones charging documents filed against Comey and James, the Bolton indictment contains 26 pages of detailed allegations, quoting from email and text messages and Bolton’s own “diary” entries. Experienced prosecutors use fact-rich indictments to provide fair notice to defendants of the government’s theory of the case so that they can mount a meaningful defense. In addition, a “speaking indictment” like this one can assure the public that this is no weak gesture toward some vague allegation of wrongdoing in hopes of shaming a defendant even if he cannot be convicted at trial. This product reflects the work of seasoned career prosecutors.
The case appears strong despite the challenges that come whenever the government charges a violation of the Espionage Act. Prosecutors are required to persuade a jury not only that a defendant mishandled classified documents but that he did so willfully. That means the government bears the burden of proving Bolton not only knew that he was transmitting national defense information but also that he knew it was illegal to do so. That high bar is what led prosecutors to decline charges against Hillary Clinton, Mike Pence, and Joe Biden. As the national security adviser, Bolton was trained in the law regarding classified information, creating circumstantial evidence of this knowledge. But this indictment goes even further, replete with Bolton’s own public statements condemning others for illegally sharing classified national defense information. It will be difficult for Bolton to argue he didn’t know better.
That’s true even in this case, in which the government will need to prove the higher mental state that’s required when a person mishandles classified information rather than classified documents, which bear clear markings indicating their sensitive nature. In cases involving intangible information, the government must also prove that the defendant “has reason to believe [the information] could be used to the injury of the United States.” Here, the indictment alleges that the information Bolton transmitted and retained included “intelligence about an adversary’s knowledge of planned U.S. actions,” “intelligence about (an) adversary’s plans for attack conducted against U.S. Forces in another country,” and “covert action planned by the U.S. government,” among other things. It would be fair to infer that disclosure of that kind of information could harm the national security of the United States. Of course, as with all defendants, Bolton is entitled to a presumption of innocence, and he has pleaded not guilty, but if those examples accurately quote Bolton’s diary entries, the case against him appears strong.
Second, the filing of these charges lacked the frenzy of unconventional personnel actions that preceded the Comey and James indictments. A social media post from President Donald Trump last month, apparently directed to Pam Bondi, urged the U.S. attorney general to charge those two defendants, calling them “guilty as hell.” Of what crime, he didn’t say. When the interim U.S. Attorney in the Eastern District of Virginia declined to bring charges, he was replaced with White House aide Lindsey Halligan, an insurance lawyer who has never served as a prosecutor. Apparently unable to find any prosecutor in her office willing to file the indictments, she filed and signed them herself, a highly unusual practice in a district the size of EDVA. In this case, even though Trump has called for retribution against Bolton for, among other things, criticizing the president in his book, the process surrounding the charges is not as suspect as those surrounding the Comey and James indictments. The charges against Bolton came out of the District of Maryland, which is headed by a career prosecutor without any of the same musical chairs we saw in the other district.
That’s not to say that Bolton lacks any defense. Like Comey and James, Bolton will likely file a motion to dismiss on the grounds of selective prosecution, a due process violation that can scuttle even a case involving actual wrongdoing. Trump’s social media rants about the targets of his retribution provide evidence that the cases are motivated as much by vengeance as by any legitimate law enforcement objective. Bolton might have an even stronger argument than the others that DOJ has treated other similarly situated defendants differently, an essential element of a selective prosecution claim. Bolton can point to the government’s failure to even investigate Secretary of Defense Pete Hegseth and other Trump administration officials for using a Signal chat to discuss attack plans in Yemen earlier this year.
Ultimately, the government will have to back up its allegations with evidence at trial. The shame of Trump’s vengeance crusade is that even when prosecutors bring important cases, the public might doubt their legitimacy.
Barbara McQuade is a professor from practice at the University of Michigan Law School, former U.S. Attorney for the Eastern District of Michigan, and author of the New York Times bestseller “Attack from Within: How Disinformation is Sabotaging America.”
And then, of course, there is the champion offender when it comes to retaining and refusing to return classified documents. And he was not president at the time. Is he going to be prosecuted after his term ends?
Selective prosecution, if Bolton can be brought to trial then I guess the same should also apply to Hegeseth. Maltreatment of classified information or documents should be considered a serious offense and regardless of who the offender is they should all be held to the same standards and treated equally.