The argument is that Trump could respond to a subpoena of Bolton by invoking executive privilege, which would then throw the issue into the courts and put the trial into a lengthy “state of limbo,” as Sen. Ron Johnson (R-Wis.) put it.
“Do we want to elongate this thing even further? I don’t believe we should,” Johnson said.
Sen. Lindsey O. Graham (R-S.C.), who has made himself one of Trump’s main wingmen in the Senate, added, “What do we do? Delay the trial so the president can go to court? … If we seek witnesses, then we’re going to throw the country into chaos.”
The pitch is, for starters, audacious: One way Trump has foiled Congress’s oversight is by bringing outlandish arguments to the federal courts — for example, his concocted argument of “temporary absolute presidential immunity” for advisers such as former White House counsel Donald McGahn — knowing that whatever their merit, they will take long enough to play out in court to prevent successful congressional action. In effect, the Republicans are bootstrapping Trump’s own cynical legal strategy as a reason to acquiesce in the president’s efforts to suppress damaging testimony. Talk about “total coordination.”
More important, the position simply overlooks the import of the constitutional command in Article I that “the Senate shall have the sole Power to try all Impeachments.”
That power is considerably broader than a simple up-or-down vote on the president’s guilt. Part and parcel of “trying a case” is setting the rules and standards for trial, making evidentiary determinations, adjudicating objections and like functions.
Indeed, the Supreme Court has noted the variety of definitions in the concept of trying a case — including “to examine or investigate judicially,” “to conduct the trial of” or “to put to the test by experiment, investigation, or trial.” And the conclusion it drew from this open-endedness is that the courts may not try to impose a specific idea of “trial”; that is a function that the constitutional text designates for the Senate alone.
This principle seems unremarkable enough when considering the question of, for example, the relevance of Hunter Biden’s testimony. During a normal trial, that question would be determined by a court (likely by finding the testimony is not relevant under federal evidentiary standards). But during an impeachment trial, Democrats can’t run to the nearest courthouse for a judicial determination. Rather, it falls to the Senate to make the call: If 51 senators say Biden’s testimony is relevant, that’s the end of the matter. The Senate has the “sole” power to decide.
The issue of executive privilege feels different in some senses: the whole concept is court-invented, and thus particularly in the expertise of the judiciary, while the stakes of making bad law are higher. And if the Senate can decide the contours of executive privilege, it gives it the power to strip away an important protection for the president, altering the normal checks and balances of the constitutional scheme, in which the judiciary adjudicates inter-branch disputes.
Yes, except the issue still gives way to the Senate’s sole power to try impeachments. It can determine relevancy — in fact, it has the sole power to do so — and it equally can set the contours of executive privilege by majority vote. There is no exception for “hard” or “quintessentially judicial” questions. We are in Impeachment Land, and the Senate can decide that noon is midnight if it has 51 votes to do so. Indeed, it’s well established that the Senate’s power is at its zenith in an impeachment setting.
And that means that if the Senate decides to subpoena Bolton, and Trump runs to the courts, he should find the courthouse door closed to him. He might — like any litigant -— be able to secure a brief stay to permit the court to examine his claim, but expect the courts to quickly (in a matter of days) decline to rule and return the matter to the Senate. Critically, the Senate’s determinations have no precedential value back in the Land of the Every Day, since none of the reasons for according persuasive or precedential force to a judicial decision applies to the raw political determination of a political process.
Yes, it all seems like a weird and topsy-turvy situation. But that is because we are in a weird, topsy-turvy and constitutionally singular world. In that world, but only that world, the Senate is the sole ruler of law, fact and all the various aspects of trying the case. Bringing in Bolton shouldn’t lead to a significant delay. Political chaos, of course, is another matter entirely.