Right now, the most urgent task for GOP senators is to prevent new witnesses and evidence from shedding fresh light on the most corrupt act at the center of President Trump’s Ukraine scheme: his freezing of military aid to extort its president into carrying out Trump’s dirty political deeds.
So they must come up with some way to justify their eventual vote against new witnesses and documents.
And their newest excuse is a total scam. CNN reports:
A growing number of Republicans are pointing to President Donald Trump's threat to invoke executive privilege in order to make their case against subpoenas sought by Democrats for key witnesses and documents, a development that could bolster Senate Majority Leader Mitch McConnell's goal of a swift end to the impeachment trial.
As CNN reports, GOP senators are “raising concerns” that a court fight over such subpoenas “will only serve to drag out the proceedings.” McConnell is warning of an “infinite” delay, an argument that, according to CNN, is “gaining traction within his conference."
Bottomless bad faith
First, let’s marvel at the laughable bad faith here. If McConnell doesn’t want any “delay,” it’s because he wants a quick trial to minimize the political damage to Trump — and to his vulnerable members — in keeping with his vow to run the trial in absolute conformity with Trump’s legal and political needs. So this “justification" actually gives away the whole sordid game.
And if this idea is “gaining traction” among GOP senators, what that really means is that they increasingly see it as a way to obscure their real motive for voting against new witnesses and documents, which they’ve always intended to do anyway.
But the entire argument is itself nonsense from top to bottom.
Trump has strongly suggested that if the Senate does vote to hear new witnesses and evidence — and then to hear from former national security adviser John Bolton — Trump would exercise executive privilege to block it.
Trump’s argument would be that presidential conversations with Bolton are protected. But of course his real motive is that Bolton and Trump privately argued over the frozen military aid — Bolton also called the whole extortion scheme a “drug deal” — and Trump doesn’t want light shed on that.
That’s precisely why Trump blocked the House impeachment inquiry from getting numerous witnesses and documents, which led Bolton to refuse to testify to the House.
The emerging GOP argument is that if senators did vote to hear from Bolton and others, it would go to court, and that would take too long, and besides, the House opted to impeach Trump without going to court, so why should the Senate do so?
But Bolton has since said he’s willing to testify if called to the Senate. And in this case — in the context of a Senate impeachment trial — it’s not at all clear it even would go to court for any protracted period at all.
How this would unfold
What would happen if the Senate did subpoena Bolton, and Trump invoked executive privilege?
Several scenarios could then unfold, according to this useful report by Todd Garvey of the Congressional Research Service.
First, if Trump’s counsel did object to Bolton on privilege grounds, Chief Justice John G. Roberts Jr. — who is presiding over the trial — could issue a ruling on it. But, crucially, the CRS report notes that this might not be the final word on the matter, because the Senate could then vote on Roberts’s ruling, and in effect make the decision itself.
As the CRS report explains, by majority vote, the Senate “retains the right to decide the privilege question.” The Constitution gives the Senate “sole power to try all impeachments.” And as CRS says, this means senators may exercise “their own independent constitutional judgment” on questions such as “whether executive privilege is applicable in an impeachment trial.”
In other words, the decision is the Senate’s to make. But as CRS adds, if the Senate did override Trump’s privilege claim, Trump’s lawyers could go to court and try to get it blocked.
This is where the new GOP argument becomes operative.
The GOP argument is nonsense
The key point is that the court might decide this isn’t subject to judicial review at all. As the CRS report notes, in reaching that conclusion, the court might cite as precedent a case in which an impeached judge asked a court to review his procedural objections to his Senate trial. The court ruled that this was non-reviewable, because the Constitution specifies no limits on the Senate’s power to “try” impeachments.
For complicated technical reasons spelled out by CRS, such a ruling isn’t a certainty. But legal experts think there’s a strong case that a Senate vote to hear from Bolton (or others) wouldn’t be subject to judicial review.
“The word ‘sole’ in the Constitution is a unique word choice that signals a lack of judicial review over the process,” Jed Shugerman, professor at Fordham Law School, told me. “If Trump were to go to federal courts, they should rule that the Senate has the final say.”
As it happens, even if the courts did review Trump’s privilege claim, a decision would be quick.
“There’s no reason courts could not consider a request for injunctive relief on an expedited basis,” Jonathan Adler, a law professor at Case Western Reserve University, told me. “They do it on capital cases and other urgent matters.” That undercuts GOP concerns about an “infinite” delay.
And even if it’s possible the court might review the question, the GOP argument is still bogus. By voting against witnesses, Republicans would in effect be declining to find out whether the court would even hear the case in the first place, which it probably wouldn’t.
The bottom line is that the Senate has final say over whether we hear from Bolton or anyone else. And that’s precisely what this new argument is designed to obscure.
That’s because GOP senators want to carry Trump’s coverup to completion, while leaving no fingerprints behind.
The latest commentary on the Trump impeachment
Looking for more Trump impeachment coverage following the president’s acquittal?
See Dana Milbank’s Impeachment Diary: Find all the entries in our columnist’s feature.
Get the latest: See complete Opinions coverage from columnists, editorial cartoonists and the Editorial Board.
Read the most recent take from the Editorial Board: It’s not over. Congress must continue to hold Trump accountable.
The House impeachment managers weigh in in an op-ed: Trump won’t be vindicated. The Senate won’t be, either.
Stay informed: Read the latest reporting and analysis on impeachment from the Post newsroom.
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