There’s a concept in the law called the “presumption of regularity” – the idea that, in the absence of evidence to the contrary, executive branch employees are presumed to have acted in good faith and through the proper channels in arriving at an outcome. The presumption is typically applied by the courts in reviewing agency decisions, but the principle can be applied to how, ideally, we should think about government actions more broadly. Having worked inside the government, and in the executive and judicial branches specifically, I have seen firsthand that when it is operating normally, government servants do, in fact, follow the rules and do their jobs like they’re supposed to. But the news that Trump’s former national security advisor, John Bolton, had his home and office searched – and in particular, the conflicted people and irregular circumstances surrounding it – has made me realize that we can no longer operate on this presumption. In fact, there is a lot that feels hinky, as we would say in the FBI, about the Bolton search.
Since the search seems to be related to some stuff that happened half a decade ago, let’s start at the beginning. Two months after Bolton left the Trump administration (or was fired, depending on whether you ask him or Trump) in 2019, he got a deal with Simon & Schuster for a book. By December of that year, he had a draft manuscript of his memoir, The Room Where It Happened – the book was critical of Trump and also bolstered some of the allegations being made against him in his first impeachment. Because the book contained Bolton’s accounts of conversations and observations during his time as Trump’s national security adviser, he was required to put his manuscript through “prepublication review” with the NSC, to ensure that it did not contain classified information. He did so, and went through four months of edits with the Senior Director for Records and Information Security Management at the National Security Council, Ellen Knight (a career employee who had been detailed to the NSC from the National Archives and Records Administration). At the end of that process, she advised him that the manuscript no longer contained classified information.
However, Bolton never received formal authorization from the White House to publish his book. In June 2020, John Eisenberg, the Deputy White House Counsel and Legal Adviser to the NSC, wrote to Bolton and told him that his book still contained classified information. At that point, though, Bolton had already sent his manuscript to his publisher. The Trump administration then sued Bolton, seeking to enjoin him from publishing his book. The judge, Royce Lamberth, denied the injunction, finding that the government could not meet the criteria showing that an injunction would prevent “irreparable harm” since 200,000 copies of the book had already been published, noting that “the horse is not just out of the barn – it is out of the country.” But Judge Lamberth also stated – after reviewing the White House declarations of the classified material contained in the book – that the government would likely succeed on the merits, because “Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations” and had “exposed his country to harm and himself to civil (and potentially criminal) liability.”
That’s pretty damning coming from a federal judge, and the Trump administration did, in fact, subsequently open a criminal investigation into Bolton. But the drama didn’t end there. In September of 2020, the lawyers for Knight – the person who had initially conducted the prepublication review – sent Bolton’s lawyers an 18-page letter. In the letter, Knight stated that political appointees at the White House, including Eisenberg and his deputy, Michael Ellis, had commandeered the prepublication review process right before she was about to clear the book for publication. Specifically, they put the authorization on hold, and Ellis had personally gone through the manuscript and declared, improperly, huge swaths of the manuscript classified. Judge Lamberth did not have the letter when he was considering his ruling, and had relied on Ellis’ and other NSC officials’ declarations in making his statement concerning Bolton’s potential criminal liability. Knight also alleged that the political appointees at the NSC pressured her to change her assessment of Bolton’s manuscript – she refused, and her detail to NSC was terminated. In short, Knight’s account is evidence that ought to rebut any presumption of regularity with regard to the prepublication process. (It also suggests that the criminal investigation on Bolton was arguably opened on false pretenses.)
(By the way: If Ellis’ name seems familiar, it is because he’s one of the ‘Where’s Waldo’s’ of the Trump era. He first surfaced in 2017, when he was working in the White House Legal Counsel’s office and was one of the officials who shared information about classified intercepted communications with Devin Nunes (for whom he had worked previously) that led to the “unmasking” controversy. Trump later tried to install Ellis as the General Counsel at the NSA, but his appointment was stalled because of an Pentagon inspector general investigation and a security inquiry into whether he mishandled classified information. Ellis, who was placed on administrative leave, later resigned.)
Anyway, all that was five years ago. Fast forward to now. Search warrants require the probable cause to be current, meaning that there has to be a reason to believe that evidence of a crime is in the places to be searched now. If Bolton’s search is related to the investigation that was opened in 2020, that would mean the FBI would have to show there was probable cause that there was evidence of possession or dissemination of classified information present now, years after he left the government and published his book. The big question is, what could possibly have come up to suddenly provide enough probable cause to obtain a warrant?
According to the New York Times, the “fresh” evidence was intelligence collected overseas by the CIA, which was recently shared with the FBI. Importantly, the CIA is prohibited from directly collecting evidence on U.S. persons (USPERs). However, the CIA can use human or technical sources to target non-U.S. persons (non-USPERs), which may result in “incidental” collection about a U.S. person (so the source says something about an USPER or they capture the target communicating with the USPER). And if that incidental collection reveals evidence of U.S. laws being broken, it can pass it to the FBI. This is relatively rare, mainly because if the FBI decides to use that information to prosecute a criminal case, it has the potential to reveal the CIA’s sources and methods. Ordinarily, this built-in disincentive would mean that the CIA would not take this step lightly – i.e., you could use the presumption of regularity.
In Bolton’s case, though, it’s hard to maintain the presumption. For one, the intelligence was passed by the CIA director, John Ratcliffe to the FBI Director, Kash Patel, both of whom are Trump loyalists aligned with his agenda, including Trump’s obvious long-standing animosity towards Bolton. (Ratcliffe had provided an affidavit against Bolton in the lawsuit about the book, and before becoming FBI director, Patel had Bolton among 60 names on a “deep state enemies” list.) And guess who is the Deputy Director of the CIA, right under Ratcliffe? One Michael Ellis. You can see why this is feeling hinky.
Perhaps, though, this search warrant is unrelated to any of the book stuff. Maybe the CIA passed intelligence to the FBI on something wholly unrelated, some recent incident involving classified information. In fact, Vice President JD Vance suggested that the search was based on something new and unrelated to the book investigation, stating, “We are in the very early stages of investigation.” But that’s red flaggy, too. Searches are typically executed in the later stages of an investigation. Because it is highly intrusive, a court will want to know that the FBI has already conducted a fairly thorough investigation and that the specific evidence sought can be obtained only through the search. It’s hard to see how the FBI would immediately run out and execute a search based on this (raw?) intelligence alone.
Perhaps the intelligence did reveal an urgent national security threat that had to be addressed immediately. If the FBI had reason to believe that, say, someone had hundreds of pages of classified documents, including nuclear secrets, sitting in their bathroom which hundreds of randos had access to, it might be able to get a search warrant immediately. Unless it involved a former president, in which case they might spend eighteen months asking nicely to get it back. But I digress.
Vance’s comments only add to the problematic aspects of this case. Vance also stated that “there was broad concern about Ambassador Bolton” and that they were gathering evidence on “something we are worried about,” adding that “if [Bolton] committed a crime, of course, eventually prosecutions will come.” Let’s pause for a minute. Even if there is an urgent, national security reason to undertake a search of someone’s home, you do that because you are investigating a specific crime, not based on vague, “broad concerns” or “worries.” That smacks of a fishing expedition. (It’s also possible that Vance doesn’t really understand criminal law and is just talking out of his butt.) And not for nothing, but am I the only one wondering why the hell the Vice President, who literally has no role in law enforcement, even knows anything about this case? Hin. Ky.
Look, I’m a process gal. For as long as I’ve been doing legal commentary, a presumption of regularity was always my starting point. Of course, any institution can have rogue and bad actors, but a properly working system will have oversight mechanisms in place to identify and weed them out – we have seen that happen before, in things like the FISA process during the first Trump administration. Right now, there is nothing to suggest that the judicial process of getting the search warrant itself was not followed. That’s a good thing. But there’s also a lot that casts doubt on whether the individuals involved are acting in good faith or observing internal executive branch norms and processes at all.
As my colleague Joyce Vance eloquently put it, “We are caught in the tension between our desire to preserve what is left of the system and the need to be clear about what is wrong.” My version is more straightforward: This whole thing just feels hinky.
