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Opinion: Justice Department probe of John Bolton is payback for his daring to criticize Trump

Updated 8:15 AM ET, Wed September 16, 2020

Editor's Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers' questions on "CNN Newsroom with Ana Cabrera" on weekends.

(CNN) - The Justice Department's decision to open a criminal investigation into former Trump administration National Security Adviser John Bolton relating to the publication of his book, as reported by the New York Times on Tuesday, is equal parts futile and dangerous.

The move to investigate Bolton stands little chance of resulting in a criminal charge and conviction on the merits alone. And, bigger picture, the move appears to signal a pernicious effort to use the Justice Department's might to punish perceived political enemies of President Donald Trump.

Bolton is no sympathetic figure. By his own account (as told in his book), he held damning and potentially pivotal firsthand information about Trump's dealings with Ukraine, for which Trump was impeached. Bolton claims in his book that Trump directly linked hundreds of millions of dollars in foreign aid to Ukraine publicly announcing an investigation of former Vice President Joe Biden and his son, Hunter, a claim which Trump denies.

Yet Bolton refused to testify during House impeachment proceedings, and later claimed he would testify in the Senate if subpoenaed; to the surprise of virtually nobody, the Republican-controlled Senate voted to block all witnesses. Bolton could have come forward and testified, like other courageous officials including former US Ambassador to Ukraine Marie Yovanovitch, top US diplomat Bill Taylor, and Lt. Col. Alexander Vindman. Instead, Bolton clammed up and waited to cash in when his book went on sale, months after impeachment ended.

The Justice Department is investigating whether Bolton unlawfully disclosed classified information in his book. The problem, however, is that the factual record is too muddled to make out a criminal case by the lofty "beyond a reasonable doubt" legal standard.

High-ranking federal employees and former employees, including Bolton, sign an agreement that they will submit any book manuscript to national security officials for pre-publication review. Bolton did just that, and he received an email from the top reviewing official saying she was satisfied that an edited version of Bolton's manuscript did not contain any classified information, but another review took place with a different official without Bolton knowing. In that review, the official determined that there was classified information in the manuscript, according to the New York Times.

The problem is that Bolton never received final, formalized sign-off before publishing his book. He may well have jumped the gun as an administrative matter, but it will be exceedingly difficult for prosecutors to convict Bolton of a crime beyond a reasonable doubt, given that he received written approval from a top reviewing official (albeit in an arguably informal manner).

Trump's own public attacks on Bolton further complicate any potential prosecution. Trump has railed against Bolton and his book, calling Bolton a "Creepster," a "lowlife" and more. Trump has also argued that Bolton should be "jailed" and have his assets seized. The Justice Department sued Bolton a week before the book's release, in an attempt to stop it from publishing. If charged, Bolton likely could argue that he has been singled out for politically vindictive purposes which, in extreme scenarios, can result in dismissal of an indictment.

In the broader view, the Bolton investigation signals an escalation in the use of the Justice Department for political purposes (or at a minimum, the public appearance of such). It is bad enough that Attorney General William Barr already has selectively intervened in prosecutions to seek unprecedented leniency for Trump's former political aides Michael Flynn and Roger Stone. Using the Justice Department to protect the President's political allies is a gross abuse of power. But it is even worse to use the Justice Department, with its staggering might, as a vehicle for political payback.

At this stage, the investigation of Bolton is just that -- an investigation, with no assurance that a criminal charge will follow. But if it does, then mark this down: Bolton will not be convicted, and history will remember that Trump and Barr have politicized the Justice Department like none before them.

Now, your questions:

Roger (California): If Trump wins a second term, could he replace Mike Pence as vice president and appoint a different person of his choosing?

No. While Trump (or any presidential candidate) is under no obligation to choose any particular person as a vice presidential running mate, once that person has been elected and takes office, the president cannot unilaterally remove or replace him. A vice president can be removed only through resignation (or death), or impeachment and conviction.

If there is a vacancy in the vice presidency, the 25th Amendment, which was ratified in 1967, provides that (1) the president selects a new vice president and (2) that person must then be confirmed by majority votes of both the House and Senate. The 25th Amendment has been used twice in our history. In 1973, Vice President Spiro Agnew resigned in the midst of a federal bribery investigation. Then-President Richard Nixon selected Gerald Ford as the new vice president, and Ford was confirmed by the House and Senate. Then, in 1974, Nixon resigned during the Watergate scandal. Ford became president and selected Nelson Rockefeller as vice president, who was then confirmed by both houses of Congress.

Jason (North Dakota): If the state of New York brings criminal charges against the President, can the Department of Justice file superseding indictments and move the case to federal courts?

No. There is no legal mechanism for the Justice Department or the federal courts to take over a state-level criminal case, or for a defendant charged criminally in a state court to have the case moved to federal court. This is different from civil cases, where parties can and often do seek to have cases "removed" (in legal lingo) from state to federal court.

If state-level prosecutors, such as the Manhattan District Attorney or the New York Attorney General, do charge the President while he is in office (or afterward), he almost certainly would move to dismiss those charges on the merits. But there is no way to get state criminal charges moved over to federal courts.

Christopher (Illinois): How long can an official serve as "acting" head of a federal executive branch department?

The Federal Vacancies Reform Act limits who can serve as an "acting" department head or secretary, and for how long. Generally, an official only can serve for either 210 days beginning on the date the vacancy occurs or while a formal nomination of that official is pending before the Senate.

Trump has made extensive use of "acting" officials to fill key Cabinet roles, far more than his predecessor, former President Barack Obama. Trump has openly declared that "I like 'acting' because I can move so quickly. It gives me more flexibility." A federal court recently ruled that the appointment of Ken Cucinelli to an "acting" post in the Department of Homeland Security was illegal, due to Cucinelli's lack of constitutional qualifications (but not due to the length of his service), and just on Tuesday a federal judge in Maryland ruled that the acting appointment of Chad Wolf to lead Homeland Security was likely unlawful.

Three questions to watch this week:

1. Will Pennsylvania prevail in its appeal of a ruling by a federal judge that certain restrictions on large gatherings is unconstitutional?

2. Will a federal judge accept the Justice Department's effort to take over representation of Trump in the defamation lawsuit filed by E. Jean Carroll?

3. Will Judge Emmet Sullivan dismiss charges against Michael Flynn or proceed to sentencing?


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