That leaves a ruling by Judge Ketanji Brown Jackson rejecting in scathing terms a similar claim of “absolute immunity” in a case involving former White House counsel Donald McGahn as the final word, for now, on current and former executive branch employees’ testimony.
Former national security adviser John Bolton, who shares a lawyer with Kupperman, had previously stated that he would rely on the outcome of the Kupperman case to decide whether to testify. (Bolton claims he wants to testify but needs direction from the courts, unlike his subordinates who performed their civic responsibility by responding to a legally sufficient subpoena.)
Bolton can no longer rely on the Kupperman case, and the relevant precedent is now the McGahn case. What then is his excuse to remain silent (other than a lucrative book deal)? As former acting solicitor general Neal Katyal, appearing on “The Beat” with Ari Melber on MSNBC on Monday night, argued, “the bottom line is that John Bolton now has no rock to hide behind anymore, and that he really should testify.”
Coupled with the blockbuster New York Times story revealing the behind-the-scenes efforts of senior officials including Bolton to release aid to Ukraine that President Trump illegally withheld to gain leverage and force an announcement from Ukraine of an investigation of former vice president Joe Biden, removal of Bolton’s last excuse (i.e., awaiting a Kupperman ruling) now requires both houses of Congress to proceed to get to the bottom of this. “Bolton has no excuse anymore,” says former prosecutor Mimi Rocah. “The standing case law says testify. Wanting to sell a book says testify. Doing the right thing for the good of your country says testify.”
The House can issue its subpoena to all senior officials involved in the events documented in the Times story (one impeachment does not prevent the House from conducting ongoing oversight and/or determining if additional impeachable acts were committed). Moreover, if and when the articles of impeachment arrive, the Senate must demand that key witnesses testify at the impeachment trial.
The court ruling and the Times story confirm the wisdom of Speaker Nancy Pelosi’s decision to delay transferring the articles of impeachment to the Senate until such time as rules for a fair trial are in place. She can now determine whether the House can call key witnesses to supplement the record and/or push for assurance that Bolton, acting chief of staff Mick Mulvaney, adviser Robert B. Blair and others appear in the Senate trial. Republicans interested in a fair trial have all the more reason to demand live witnesses, given the new facts that have come to light and the dismissal of the Kupperman case.
Former prosecutor Joyce White Vance tells me, “Bolton doesn’t have any legally cognizable privilege to assert and should testify. We can confirm this with common sense: Someone close to the president who has said he has information and who we now know was involved in counseling the president against the course of conduct he took in Ukraine must certainly testify if we’re going to learn the truth.” Vance adds, “If Bolton and other witnesses with information relevant to Trump’s conduct in Ukraine don’t testify, the Senate trial will be nothing more than a fancy coverup.”
In sum, it is time for the House to press forward, for the Senate to do its job and for key witnesses to behave honorably. The judgment of history — not to mention the voters in 2020 — will be harsh if they fail to end Trump’s coverup.