Republicans for the Rule of Law Have a Few Choice Words

As a matter of policy, I tend to stay away from stories and opinion pieces about things that may or may not happen. That said, Jennifer Rubin may well prove to be right when she observes that Nancy Pelosi may yet have the last laugh.

As I said yesterday, it really stinks to argue that the House’s factual case is “too indirect” and “too circumstantial”—and then vote to block the witnesses with direct knowledge from testifying. You can fool all of the people some of the time, and you can fool some of the people all of the time, but even those you can fool pretty much all of the time have their limits, and if you sling enough bullshit for a long enough time, you will find out what those limits are. That’s the point we’re at now.

“What about Executive Privilege?” Asks a Friend from the Progressive Table at Happy Acres

“Can’t Trump just order Bolton not to testify?” she asks.

Yes, he can do that very thing. And he can also order Bolton to jump off the Brooklyn Bridge or to douse himself with gasoline and light a match.

But Bolton does not have to obey the order.

The legal analysis goes like this. There is case law telling us that conversations between a president and his close aides, about policy, are protected from disclosure by the doctrine of executive privilege. Bolton was a close aide. The matters about which he will testify concern policy. So executive privilege presumptively applies.

But legal privileges against disclosure may be waived, and Trump may already have waived this one—by disclosing some of the evidence but trying to hide the rest of it. And legal privileges do not protect conversations intended to implement ongoing crime or fraud. (And do remember that Bolton called Ukrainegate “Giuliani’s drug deal.”)

How Could Trump Try to Use Executive Privilege to Block Bolton’s Testimony?

The lawyer-client privilege belongs to the client, not the lawyer, and the executive privilege belongs to the executive, not the aide.

I assume that, if we get to the point where Bolton actually takes the stand in the Senate, then Trump’s defense lawyers will try to assert executive privilege pretty much after every question. I assume that Chief Justice Roberts would initially rule on whether Bolton must answer the question, but that ruling is subject to the views of a majority of the Senate. So if some of the Republicans want to play that game, there could be lots and lots of votes.

Could Trump Assert the Executive Privilege in Court to Prevent Bolton from Testifying in the Senate?

He could always try. There are multiple reasons to think he would not get very far. But we are sailing into uncharted waters, here.