Jan Wolfe -
President Donald Trump would have a tough time blocking John Bolton’s testimony in his US Senate impeachment trial by invoking the legal doctrine called executive privilege if his former national security adviser is subpoenaed as a witness, according to legal experts.
The Republican-controlled Senate has not yet decided whether to allow any witnesses or new evidence in the trial that will determine whether the Republican president is removed from office after being impeached on December 18 by the Democratic-led House of Representatives on two charges.
Bolton refused to cooperate with the House inquiry but made a surprise announcement on January 6 that he would be willing to testify in the Senate trial if subpoenaed to do so.
Democrats have said they are eager to hear testimony by Bolton, who was involved, as his own lawyer said, in “many relevant meetings and conversations” involving issues at the heart of Trump’s impeachment. The House accused Trump of abuse of power and obstruction of Congress arising from his request that Ukraine investigate political rival Joe Biden.
Trump has denied wrongdoing and called the impeachment an “attempted coup.” Bolton left his post in September after disagreements with the president. Trump said he fired him. Bolton said he quit.
Trump has indicated he may seek to use executive privilege to prevent Bolton from testifying. Under this doctrine, a president is able to keep certain communications private, particularly those implicating national security, if disclosing them would undermine executive branch functions.
Legal experts said Trump’s executive privilege claim would be weak.
Bolton’s testimony is “clearly critical to issues before the Senate, and that outweighs any privilege that applies,” said Michael Stern, a former lawyer for the House when the chamber was controlled by Republicans.
The Senate is expected to vote on whether to call witnesses after hearing opening arguments from House Democrats making the case against Trump and the lawyers defending the president. In a 100-seat chamber with 53 Republicans, Democrats would need four Republicans to join them to win any vote to call witnesses.
Asked about invoking executive privilege if Bolton were to be subpoenaed, Trump told Laura Ingraham of Fox News on Jan 10: “I think you have to - for the sake of the office.” Trump, speaking in Davos, Switzerland on Wednesday, said Bolton’s testimony would pose national security concerns.
“He knows some of my thoughts. He knows what I think about leaders. What happens if he reveals what I think about a certain leader, and it’s not very positive and I have to deal on behalf of the country?” the president asked.
Andrew Kent, a constitutional law professor at Fordham University in New York, said there is a strong argument that executive privilege does not apply to impeachment whatsoever.
A claim by Trump that executive privilege applies to Bolton could be ruled upon by Chief Justice John Roberts, who is presiding over the trial, Kent said. Senate rules allow Roberts, who has typically avoided perceived partisanship, to instead let the senators decide, Kent added.
Trump could also file a lawsuit and ask a federal judge to block Bolton from testifying, Stern said, but that manoeuvre would likely anger the Republican senators who voted to hear from Bolton.
“He won’t win, legally, and it could backfire politically,” Stern said, referring to Trump. — Reuters
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