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Esper sues Defense Department for ‘censoring’ First Amendment rights by redacting book on Trump administration

Mark Esper
23rd Secretary of the Army, Mark Esper, left, inspects the troop at Conmy Hall, Joint Base Myer-Henderson Hall, Va. Friday, Jan. 5, 2018, during a full honor arrival ceremony in his honor. (AP Photo/Carolyn Kaster) (AP Photo/Carolyn Kaster)

Esper sues Defense Department for ‘censoring’ First Amendment rights by redacting book on Trump administration

November 28, 07:53 PM November 28, 08:00 PM

Former Defense Secretary Mark Esper sued the Defense Department for “censoring” his First Amendment rights by redacting parts of his upcoming memoir about the Trump administration.

He also accused Biden administration officials of “unlawfully” blocking sections of the book on his rocky tenure leading the Pentagon “under the guise of classification,” according to the lawsuit filed in Washington, D.C., federal court on Sunday.

“The American people deserve a full and unvarnished accounting of our nation’s history, especially the more difficult periods. My memoir — A Sacred Oath — offers important details and new insights into many of the most controversial events that occurred during the tumultuous second half of the Trump Administration,” Esper said in a statement provided to the Washington Examiner. “As part of my lawful obligations and lifelong commitment to protecting national security, I submitted by manuscript to the Defense Department for review.”

Esper added: “For nearly six months, I patiently followed the formal process, only to have my unclassified manuscript arbitrarily redacted without clearly being told why. I am more than disappointed the current Administration is infringing on my First Amendment constitutional rights. And it is with regret that legal recourse is the only path now available for me to tell my full story to the American people.”

The lawsuit contends that “significant text is being improperly withheld from publication … under the guise of classification” and that the Pentagon has “impermissibly infringed” upon Esper’s “right to publish unclassified information.” The legal action asks the court to “permanently enjoin” the Defense Department “from restraining the publication of any portion of unclassified text within the Manuscript” and to “declare and find that the redacted text from the Manuscript is unclassified.”

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Mark Zaid, an attorney perhaps best known for representing the Ukraine whistleblower who helped spark Trump’s first impeachment as well as representing a Capitol Police officer who testified before the Democrat-led Jan. 6 select congressional committee, is leading the Esper lawsuit against the Pentagon.

“Secretary Esper is the highest ranking former official to ever sue the U.S. government for censoring his First Amendment rights,” Zaid told the Washington Examiner. “It is imperative that the public fully understands what our government has been up to, especially during times of turmoil.”

Pentagon spokesman John Kirby said in response to the lawsuit, “As with all such reviews, the department takes seriously its obligation to balance national security with an author’s narrative desire. Given that this matter is now under litigation, we will refrain from commenting further.”

Esper’s lawsuit follows the battle over former White House national security adviser John Bolton’s own book last year.

The Trump administration sued Bolton last summer and attempted to block the release of his book. The Room Where it Happened, accusing him of breaching obligations and improperly disclosing classified information in his anti-Trump memoir. The Trump Justice Department claimed Bolton’s tell-all was a “clear breach of agreements he signed as a condition of his employment and as a condition of gaining access to highly classified information and in clear breach of the trust placed within him by the United States Government.”

The Trump DOJ argued that Bolton’s book “still contains classified information” and it opened a criminal inquiry into whether Bolton unlawfully disclosed classified information in his book.

The Justice Department under the Biden administration dropped its legal efforts against Bolton this summer.

Esper’s lawsuit contends the Pentagon “has unlawfully imposed a prior restraint” upon Esper “by delaying, obstructing, and infringing on his constitutional right to publish his unclassified manuscript” and that the Defense Department’s actions have “unreasonably delayed and prevented” his book from publishing.

The book is slated for release in May 2022.

Esper said he submitted his memoir’s manuscript to the Pentagon’s Office of Pre-publication and Security Review in late May of this year, noting that although he “is challenging the actions and classification decisions of DoD, throughout this review process the staff of DoDOPSR have been nothing but professional and cooperative.”

The memoir is supposed to be about Esper’s tenure first as secretary of the Army beginning in November 2017 through his being fired as defense secretary after the election in November 2020. Esper’s lawsuit contends that “he led DoD through an unprecedented time of civil unrest, public health crises, growing threats abroad, Pentagon transformation, and a White House seemingly bent on circumventing the Constitution” and that his book will be an “unvarnished and candid memoir of those remarkable and dangerous times.”

The lawsuit says Esper spent nearly six months after submitting the manuscript “engaged in extensive interactions and coordination with DoDOPSR staff regarding the review” of his proposed book, contending that the length of time the Pentagon was taking to approve the manuscript “was unusual for a former Secretary of Defense.” Esper’s lawsuit says that from early October to early November he “engaged with DoD to understand the rationale behind their redactions, resolve issues, and to propose ways forward to ensure full approval of his Manuscript.”

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Esper says he emailed Defense Secretary Lloyd Austin in early November, with the lawsuit quoting his email at length: “When I submitted the manuscript in May, I was confident that nothing in the document contains classified information or compromises national security. I still hold that view. … However, upon return of the document to me last month by DOPSR, multiple words, sentences, and paragraphs from approximately sixty pages of the manuscript were redacted.” He said he wasn’t given a proper explanation.

The email Esper sent to Austin continued: “For example, some requested redactions asked me to not quote former President Trump and others in meetings, to not describe conversations between the former president and me, and to not use certain verbs or nouns when describing historical events.” Esper added: “Should the decision be made to not require the provision of these justifications, or that none are received in time, then I can only conclude that my ongoing assessment — that nothing in my manuscript is classified or would compromise national security — remains true.”

The lawsuit said “no response was ever received from Secretary Austin” but a few days later a DoDOPSR staff member told Esper the “second manuscript review is complete” and the manuscript was “Cleared as Amended” with “39 pages requiring amendment” and “recommended text” from the Pentagon.

Esper’s lawsuit contends “during the time DoD was conducting its prepublication classification review, certain stories that Secretary Esper described in the Manuscript suddenly appeared in mainstream media articles” and that “one or more DoD officials (or possibly those in other agencies who received the referral from DoD) involved with the prepublication review process leaked this information.”

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