The Washington PostDemocracy Dies in Darkness

Trump’s lawyers are wrong. Calling witnesses won’t lead to endless litigation.

If the White House claims executive privilege, the chief justice can rule immediately. And no courts can intervene.

Jay Sekulow, President Trump's personal attorney, speaks during the impeachment trial. (AP)

The White House has made up a new reason for urging Republican senators not to allow relevant witnesses, such as former national security adviser John Bolton, to testify during President Trump’s impeachment trial, despite support for such testimony from 75 percent of Americans. The White House’s claim is that allowing testimony will lead Trump to assert executive privilege, which will — in turn — lead to protracted battles in the federal courts, drawing out the entire impeachment process for weeks or even months.

This is just poppycock.

If Trump asserts executive privilege to keep Bolton from testifying, his claim can be resolved immediately — by the chief justice of the United States, whom the Constitution makes the presiding officer in a president’s impeachment trial. The Supreme Court has made clear that internal management of an impeachment trial is a matter for the Senate alone, and no second-guessing by federal courts is permitted.

Trump waived executive privilege when he called Bolton a liar

An assertion of executive privilege by a witness like Bolton would happen in the middle of the ongoing impeachment trial in the Senate. That’s no ordinary assertion of privilege in the context of, say, civil litigation or congressional testimony. And it’s a far cry from the assertion of immunity (and, potentially down the road, privilege) made by the Trump administration in ordering current and former officials like former White House counsel Donald McGahn to ignore subpoenas from the House during its impeachment investigation. Those subpoenas may relate to the impeachment inquiry into Trump, but they’re still subpoenas — and they can be enforced like any other subpoena in federal court, just as a federal judge ruled in McGahn’s case in November.

Contrast all of that with a potential assertion of executive privilege to stop Bolton within the ongoing impeachment trial. That assertion of privilege requires a ruling in its proper context — which is that of an impeachment trial in particular, presided over by Chief Justice John G. Roberts Jr. That’s why the long-standing Senate rules for impeachment make clear that “the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions,” subject to being overruled by a majority of senators. A ruling on privilege is an evidentiary question, and so the chief justice can and should rule on it, right then and there, or submit it without ruling to a Senate majority, as the same rule also permits. Either way, that’s where and how the ruling on privilege happens within an impeachment trial: on the floor of the Senate.

That’s also where the matter ends. The White House’s attempt to scare Republican senators away from witnesses rests on the notion that before or after such a ruling by Roberts the matter would go to federal courts: first a district court, then a court of appeals and perhaps even the Supreme Court. That’s where the specter of a delay comes in.

But that’s simply incorrect. The Supreme Court has made clear that federal courts cannot second-guess how the Senate uses “the sole Power to try all Impeachments” bestowed on it by the Constitution. The court held that the constitutional provision allocating to the Senate the power to try impeachments lacked “any judicially manageable standard of review of the Senate’s actions,” finding instead that the means of conducting impeachments are textually committed by the Constitution to the Senate alone. The court thus made clear that the judicial branch cannot second-guess how the Senate chooses to undertake impeachment trials within the guideposts set out by the Constitution. In other words, courts are not allowed to engage in “review of the Senate’s actions” when it is carrying out the solemn constitutional responsibility of conducting an impeachment trial.

That’s game, set, match for the White House’s argument. If Trump tried to get a federal court — rather than the chief justice — to rule on his assertion of executive privilege to block Bolton’s testimony, he would run headlong into this Supreme Court ruling. It shouldn’t take weeks or months for a district court to dismiss the challenge as non-justiciable and be affirmed by a court of appeals and even the Supreme Court; it should take days. (And that’s all in addition to the utter weakness of such a claim in the impeachment context, as well as the obvious waiver of any privilege by Trump by discussing publicly, in detail, his relevant discussions with Bolton.)

Trump can't stop Bolton from testifying

If there’s any doubt, remember the federal courts can move quickly. The Supreme Court’s decision regarding access to the tapes of President Richard Nixon in the context of a criminal investigation raced through the court system, from start to finish in about three months.

Admittedly, that speed — though it’s very fast for the courts — could be slow enough to alarm senators looking ahead to a general election that’s only nine months off. But Nixon’s case raised some issues that were novel at the time concerning the scope of executive privilege amid a criminal investigation. By contrast, a challenge by Trump would fall within the zone of Senate authority clearly demarcated already by the Supreme Court. It should move even more quickly, particularly in the midst of an ongoing Senate trial over which the chief justice is already presiding.

So Republican senators shouldn’t be scared by the prospect of protracted litigation drawing out the impeachment trial. Instead, they should do what the American people demand: agree to witnesses, such as Bolton, who can tell all of us the truth of exactly what Trump did.

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