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Legal experts: Donald Trump cannot use ‘executive privilege’ to block John Bolton testimony

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It remains to be seen whether or not Republicans in the U.S. Senate will vote to include testimony from witnesses in President Donald Trump’s impeachment trial, including former National Security Adviser John Bolton — who has said that he would testify if subpoenaed. Trump has asserted that he will invoke executive privilege if Bolton or any other national security officials are called to testify. But according to an article for Just Security written by six contributors (Harold Hongju Koh, Rosa Hayes, Annie Himes, Dana Khabbaz, Michael Loughlin and Mark Stevens), U.S. Supreme Court Justice John Roberts “should reject any such executive privilege claim” and “require Bolton’s testimony.”

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“First, judicial precedent does not condone the extension of executive privilege to former officials like Bolton in the context of a Senate impeachment trial,” the reporters explain. “Second, Trump may not invoke national security privilege with respect to Bolton’s and others’ information regarding the president’s conversations with Ukrainian President Volodymyr Zelensky. Third, even if Trump could, any such claim of privilege has now likely been waived by the actions of the president, Bolton and others.”

The Just Security contributors go on to explain why executive privilege “does not apply” to possible testimony from Bolton.

“As a threshold matter, there is no precedent for the president invoking executive privilege to preclude the private testimony of a witness who is able and willing to testify,” they observe. “Bolton is a private citizen who is no longer a member of the executive branch. He has already indicated his willingness to testify, and he has no legal authority to dictate the conditions. If Trump now attempts to assert executive privilege to prevent Bolton from testifying, existing precedent from the Supreme Court, circuit courts and D.C. District Court all suggest that Bolton’s testimony is not protected by executive privilege.”

The only U.S. Supreme Court case that addressed “executive privilege over presidential communication,” the writers point out, was 1974’s United States v. Nixon in 1974. In that case, the six Just Security contributors recall, “the Court required President Richard Nixon to comply with a subpoena to turn over audio tapes of his conversations to a special prosecutor. The Nixon Court explicitly rejected the notion of unqualified executive privilege, instead holding that the privilege should be limited to communications in furtherance of actual presidential responsibilities.”

According to Koh, Hayes, Himes, Khabbaz, Loughlin and Stevens, “claims of executive privilege should be met with particular skepticism when raised in the context of a presidential impeachment trial, where the question is whether the president used his office to commit impeachable offenses. Bolton would be called as a witness pursuant to a congressional subpoena, which should carry the same weight as the grand jury subpoena in Nixon.

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The High Court’s ruling in United States v. Nixon was handed down on July 24 1974 — which was less than a month before Nixon, on August 8, 1974, announced that he was resigning. Vice President Gerald R. Ford was sworn in as president of the United States the following day.


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