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.

Are They Ostriches, or are They Playing Br’er Rabbit in the Briar Patch?

Ostriches

My post about Greeks bearing gifts—in reference to John Bolton’s possible testimony—has elicited some support for the view that Republicans are acting like Br’er Rabbit in the briar patch, secretly yearning for Bolton to appear while pretending to fear what he has to say.

But Neal Katyal and George Conway say the fear is real. I think their view makes more sense.

And then there is the question of how this interacts with the Iran crisis. If Bolton loved Trump when it looked like he was starting a war, will he still love Trump if Putin yanks him in sensitive spot and tells Trump not to start a war?

I don’t think so.

Temeo Danaos et Dona Ferentes

TROJAN HORSE FROM SCENE FROM FILM TROY

A friend, and fellow brother of the far, writes this of Bolton’s forthcoming testimony. (Google Translator amusingly mistranslates it as “random Greeks bearing gifts.”) I share his sentiments, as does Greg Sargent: we just don’t know what the hell Bolton will say, and there is a plausible, speculative case that he might shape his testimony to screw the Democrats.

That said, I think—unlike my friend, apparently—that the more likely scenario is that, if and when Bolton ever tells his story, it is Trump who will be the screwee.

And, on that assumption, as Sargent lays out persuasively, the Republicans who want impeachment to just go away are in a mell of a hess.

As a former antitrust lawyer, I know far too much about illegal conspiracies and attempts to cover up illegal conspiracies. Coverups are always highly problematic. And Trump’s ludicrous attempts to cover up Ukrainegate will go down in history as the mother and father of all screwups: a reasonably successful effort to prevent Trump-friendly witnesses from testifying, combined with an hilarious failure to keep the bad evidence from coming out.

Someone should tell President Numbnuts that you want to do it the other way around.