So to be clear, Bolton, who is no longer in the administration, is choosing not to appear. Why does he want the cover of a court order? So he can tell Republican friends he had no choice but to testify? So he avoids a measure of vitriol from the president (who will be angry, no matter what)?
“It’s particularly ridiculous for Bolton to await some judicial ruling about his obligations to testify under oath to what he knows about a presidential abuse of power so grave that he described it to colleagues as akin to a ‘drug deal’ when other civil servants have risked their careers and endured presidential taunts and threats to speak truth to power in the face of an unprecedented White House order that they all clam up,”says constitutional scholar Laurence Tribe. He observes that Bolton’s "oath to support the U.S. Constitution should matter more to him than his loyalty to the person now occupying the White House and, frankly, his interest in maximizing the royalties from whatever tell-all book he plans to write. "
It’s remarkable that officials with far more to lose than Bolton (their jobs, their pensions) are willing to perform their patriotic duty and testify about impeachable acts while Bolton waits for an engraved invitation from a court. (It’s not clear whether he wants a final decision from the circuit court or would be satisfied with a district court decision.) “Even if his case is decided by Don McGahn’s, where court proceedings are further along, there will still be lengthy delays for appeals,” says former prosecutor Joyce White Vance. “If Bolton was really a patriot, he would buck the White House and tell the American people the truth.”
Bolton’s testimony could be devastating if, as expected, he would confirm other witnesses’ statements and relate firsthand conversations with President Trump about extorting Ukraine to obtain help for Trump’s reelection. The testimony might be especially powerful for Republicans who respect Bolton and cannot cast him as part of the “deep state” or some such rubbish.
Meanwhile, the House is moving to speed up the legal process that might pry Bolton loose. On Wednesday, the House withdrew its subpoena for Bolton’s former deputy, Charles Kupperman (represented by the same lawyer Bolton uses), thereby short-circuiting a case that would not be heard until December. Instead, the House will be relying on an existing case concerning the subpoena for former White House counsel Donald McGahn, who refused to respond to a subpoena from the House Judiciary Committee.
The Post reports that “U.S. District Judge Kentanji Brown Jackson in Washington heard oral arguments in the McGahn case last week and said she would probably issue an opinion before the end of November. At the hearing, Jackson expressed skepticism about the Trump administration’s claim that Congress cannot compel the former White House counsel and top presidential aides to testify. She called it a ‘peculiar’ argument that threatens to upset the Constitution’s system of checks and balances.”
One should appreciate the ridiculousness of the arguments McGahn’s lawyers are making. They range from denying the court has any jurisdiction to enforce a subpoena to a claim of absolute immunity that postulates that a senior adviser — even a former adviser! — can never be compelled. Under this argument, because Congress cannot compel the president’s testimony, it cannot compel those who work for him. And nothing those staffers say, regardless of whether it includes direct communication with the president or not, can be disclosed.
What McGahn’s lawyers omit is that there is no constitutional or judicial ruling to support that position. McGahn’s lawyers cite U.S. v. Nixon (which required President Richard M. Nixon to turn over tapes) for the platitudinous position that the president has to be free “to explore alternatives” when shaping policy. Of course, he is not free to commit crimes or shielded from inquiry as to matters that were not U.S. policy but relevant to his own reelection scheme. It is no surprise the judge looked askance on this thin and dangerous argument.
The House, in short, hopes to come up with a definitive ruling from the McGahn case that will spring Bolton loose. But at the moment, he is choosing to hide from investigators, refusing to perform his civic obligation, unlike so many lower-level officials. “I don’t know if Bolton decided not to testify because he is a coward or because he is a partisan, but, he should be up there telling what he knows,” says former Justice Department spokesman Matthew Miller. “He is an accomplished government veteran at the end of his career with little to lose, especially compared to the civil servants who are risking their careers to come forward.”
Bolton has the ability and the obligation to tell us whether Trump committed impeachable acts. He is simply choosing not to. “Other officials have bravely come in to give truthful testimony, which has been incredibly important both to advancing the public’s understanding of serious presidential misconduct and to allowing our system of checks and balances to work as it should. Bolton should do the same,” advises Noah Bookbinder, head of the nonprofit Citizens for Responsibility and Ethics in Washington. If not, history will judge him harshly and presume he was passive when Trump was ready to throw our ally Ukraine to the Russian bear.