According to Greg Sargent at the Washington Post, Senate Majority Leader Mitch McConnell is trying to pull one over on the Democrats in his attempt to make sure former national security adviser John Bolton doesn't speak during the impeachment trial of Donald Trump -- and that Democrats should call his bluff.
Noting a CNN report that states, "A growing number of Republicans are pointing to President Donald Trump's threat to invoke executive privilege in order to make their case against subpoenas sought by Democrats for key witnesses and documents, a development that could bolster Senate Majority Leader Mitch McConnell's goal of a swift end to the impeachment trial," as an excuse to keep Bolton at arms-length from testifying, the Wapo columnist said executive privilege may not be the stop-gap Republicans think it is.
Calling worries that going through the courts would take too long as "nonsense," Sargent said it doesn't hold up.
"Trump has strongly suggested that if the Senate does vote to hear new witnesses and evidence — and then to hear from former national security adviser John Bolton — Trump would exercise executive privilege to block it," he wrote. "But of course his real motive is that Bolton and Trump privately argued over the frozen military aid — Bolton also called the whole extortion scheme a “drug deal” — and Trump doesn’t want light shed on that. That’s precisely why Trump blocked the House impeachment inquiry from getting numerous witnesses and documents, which led Bolton to refuse to testify to the House."
As Sargent notes, "It’s not at all clear it even would go to court for any protracted period at all," and turned to Todd Garvey of the Congressional Research Service for back-up.
"First, if Trump’s counsel did object to Bolton on privilege grounds, Chief Justice John G. Roberts Jr. — who is presiding over the trial — could issue a ruling on it. But, crucially, the CRS report notes that this might not be the final word on the matter, because the Senate could then vote on Roberts’s ruling, and in effect make the decision itself," Sargent wrote. "As the CRS report explains, by majority vote, the Senate 'retains the right to decide the privilege question.' The Constitution gives the Senate 'sole power to try all impeachments. And as CRS says, this means senators 'may exercise their own independent constitutional judgment' on questions such as whether executive privilege is applicable in an impeachment trial.'"
Pointing out that Trump's lawyers could run to the courts to stop the testimony, the columnist explains, "Legal experts think there’s a strong case that a Senate vote to hear from Bolton (or others) wouldn’t be subject to judicial review."
According to Jed Shugerman, professor at Fordham Law School, "The word ‘sole’ in the Constitution is a unique word choice that signals a lack of judicial review over the process. If Trump were to go to federal courts, they should rule that the Senate has the final say.”
As for the speed and length of the appeal -- which McConnell is using as a threat-- Shugerman stated that the courts would have no problem expediting their decision.
'Even if it’s possible the court might review the question, the GOP argument is still bogus. By voting against witnesses, Republicans would in effect be declining to find out whether the court would even hear the case in the first place, which it probably wouldn’t," the columnist explained before concluding, "The bottom line is that the Senate has final say over whether we hear from Bolton or anyone else. And that’s precisely what this new argument is designed to obscure."
You can read the whole piece here.