Republicans are using the threat of a protracted executive privilege battle as a cudgel to dissuade their colleagues from calling former national security adviser John Bolton to testify at President Trump’s impeachment trial.
As the Senate barrels toward a make-or-break moment on witnesses next week, Trump allies and members of leadership are warning that calling Bolton, or any current or former administration officials, to testify could draw out the impeachment fight for weeks, if not months.
GOP senators expect Trump to make good on his suggestion that he could invoke executive privilege to avoid complying with subpoenas stemming from the trial. Legal experts are divided over exactly how the dispute would unfold, and under what time frame, but some believe it could lead to a lengthy court battle involving largely untested legal questions.
Sen. Ron Johnson (R-Wis.) said the fight would force lawmakers to pause the impeachment trial and keep Congress in a “state of limbo” as the court battle plays out.
“Do we want to elongate this thing even further? I don’t believe we should,” Johnson told The Hill.
Sen. Roy Blunt (Mo.), the No. 4 Republican senator, added that Trump “should” invoke the legal protection after the House skipped resolving their own legal fights with the administration before voting on the impeachment articles.
“It will have to go to the courts and absolutely it will be drawn out,” he said.
Constitutional scholars say guidance from previous Supreme Court decisions may be of limited use to clear the thicket surrounding a possible assertion of executive privilege, the legal doctrine that shields certain presidential and executive communications from disclosure.
The most relevant case involves President Nixon’s privilege claim over the Watergate tapes. Ruling against Nixon in 1974, the justices said a president cannot withhold important evidence from an ongoing criminal investigation.
But while the Nixon case asked the justices to draw a line between executive privilege and law enforcement, Trump’s privilege assertion would present a novel separation of powers question the high court did not address in 1974.
The prospect of a legal battle has been simmering since Bolton opened the door earlier this month to testifying in the Senate impeachment trial if subpoenaed.
Bolton is one of four witnesses Democrats are hoping to call to testify. They also want Michael Duffey, an Office of Management and Budget (OMB) staffer; Mick Mulvaney, the acting White House chief of staff; and Robert Blair, a Mulvaney aide.
Senate Minority Leader Charles Schumer (D-N.Y.) signaled this week that he is willing to accept a court battle in order to get witness testimony or documents.
“Look, if the White House tries to exert executive privilege on an order that passes by definition in a bipartisan way and is signed by the chief justice of the Supreme Court on a subpoena, I think that the courts would look very favorably on that,” he told reporters.
Rep. Zoe Lofgren (D-Calif.), one of the House impeachment managers, said Bolton “has a right to testify if he wants to.”
“Executive privilege cannot be used to prevent a witness who is willing to testify from appearing, and certainly not one who no longer works in government. It’s not a gag order. And witnesses testify on national security all the time,” she tweeted.
Democrats would need four Republicans to vote with them to successfully call a witness, and GOP senators are expressing confidence the votes are not there.
Sen. Lisa Murkowski (R-Alaska), who has been seen as a swing vote, appeared wary of a legal fight, characterizing House Democrats as trying to get the Senate to go through a legal battle they bypassed.
“It’s kind of like the House made a decision that they didn’t want to slow things down by having to go through the courts,” she said. “And yet now they’re basically saying you guys need to go through the courts. We didn’t but we need you to. That’s kind of where we are.”
Trump, speaking in Davos this week, didn’t specifically say he would invoke executive privilege if Bolton was called to testify. But he hinted at concerns that Bolton could be asked, or could testify about, Trump’s thoughts or conversations they had on national security measures.
“But when you have a national security — where you could call it ‘presidential prerogative.’ You could just call it — the way I look at it, I call it ‘national security’ — for national security reasons. ‘Executive privilege,’ they say. So that would — John would certainly fit into that. When you’re a national security adviser … I just think it’s very hard,” he said.
Jay Sekulow, Trump’s personal attorney and a member of the impeachment team, told Fox News that executive privilege dates back to the country’s founding and has been “overwhelmingly recognized by the Supreme Court.”
But other schools of thought say the senators could resolve the privilege issue themselves, obviating the need to go to court but putting senators in the middle of a murky battle at the intersection of law and politics.
While the Constitution grants the Senate the “sole” power to try impeachments and calls on the chief justice to preside, the founding document is silent on evidentiary matters in impeachment trials.
James Robenalt, an attorney with the firm Thompson Hine and an expert on Watergate, said the Constitution and Senate rules empower the upper chamber to decide questions of evidence admissibility.
“I think the Senate has the right to make its own rules and rulings,” Robenalt said. “That should keep the courts out of privilege decisions.”
Some Republicans have warned that if the Senate rules against Trump’s privilege claim it could permanently erode crucial presidential protections.
“Here’s what I’m going to tell future Houses: If you blow through these privileges because you want to impeach a president before the election and you come to the Senate and you ask me to destroy the privilege, forget it,” Sen. Lindsey Graham (R-S.C.) told reporters.
He added that, aside from a court battle, “the only option available to the Senate now is to recognize the privilege, and that’s the end of Bolton’s testimony.”
Rep. Mark Meadows (R-N.C.) also appeared to indicate to reporters that he thought the fight over privilege could be decided by the Senate.
“It’s going to ultimately be determined by that Senate trial in terms of this particular case. I think jurisprudence and other judicial renderings will take long after this,” he said, but added that talk of a drawn-out court battle was a “false narrative.”
But asked about the notion that senators should decide the privilege issue, some Republicans appeared to balk, raising questions about whether the caucus would throw itself into the center of the battle.
“That would not be my view,” Blunt said.
Johnson also appeared visibly perplexed and noted it could blur the separation of powers.
“The Senate may take that position. I’m not sure the president would,” he said. “I actually want to make sure the Article II branch maintains its separation.”
In addition to bogging down the impeachment trial in a lengthy court fight, Democrats’ pursuit of witnesses risks backfiring in other ways, warned a member of Trump’s defense team. Attorney Alan Dershowitz said Democrats risk opening the door to witnesses sought by some Republicans, including the son of former Vice President Joe Biden.
“I think Democrats will rue the day they sought witnesses because their witnesses will probably be blocked by executive privilege or by court proceedings involving executive privilege,” Dershowitz said Wednesday in a Fox News interview. “But the Republican witnesses, like Hunter Biden, there would be no basis for blocking their testimony.”