Trump will have hard time blocking potential Bolton trial testimony
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[January 23, 2020]
By Jan Wolfe
WASHINGTON (Reuters) - President Donald
Trump would have a tough time blocking John Bolton's testimony in his
U.S. 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
Dec. 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 Jan. 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.
Mark Rozell, a constitutional scholar who wrote a book about executive
privilege, said he believes Bolton could be questioned without revealing
sensitive national security information.
"To me, it looks like the president is just trying to protect himself,"
said Rozell, dean of George Mason University's Schar School of Policy
and Government in Virginia.
NIXON RULING
The U.S. Supreme Court ruled in a 1974 case involving a judicial
subpoena to then-President Richard Nixon that a president's need for
confidentiality must be balanced against Congress's need for testimony
or documents. Nixon that year resigned as president in the Watergate
corruption scandal.
Legal experts said the Senate's right to evidence is particularly strong
when it is considering whether to remove a president as opposed to
conducting routine executive branch oversight.
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President Donald Trump listens as his national security adviser John
Bolton speaks during a presidential memorandum signing for the
"Women's Global Development and Prosperity" initiative in the Oval
Office at the White House in Washington, U.S., February 7, 2019.
REUTERS/Leah Millis/File Photo
Testimony in the House impeachment inquiry revealed that Bolton
objected to an effort by Trump's personal lawyer, Rudy Giuliani, and
others to pressure Ukraine outside of regular diplomatic channels.
"I am not part of whatever drug deal Sondland and Mulvaney are
cooking up on this," Bolton said, according to a witness in the
House investigation, referring to U.S. Ambassador to the European
Union Gordon Sondland and acting White House Chief of Staff Mick
Mulvaney.
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 maneuver 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. "Once the majority of senators have said
they want to hear from Bolton, going to court is just going to rub
senators the wrong way."
(Reporting by Jan Wolfe; Editing by Noeleen Walder and Will Dunham)
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