If all Democrats in the U.S. Senate voted in favor of featuring witnesses in President Donald Trump’s impeachment trial and at least four Republicans joined them, former National Security Adviser John Bolton could be subpoenaed to testify — in which case, Team Trump might claim executive privilege in an effort to prevent that from happening. But legal experts Ryan Goodman and Andrew Weissmann, in a January 28 article for Just Security, offer some reasons why such an executive privilege assertion wouldn’t serve the Trump White House well.
Goodman and Weissmann both have strong legal credentials: Weissmann was a lead prosecutor in former Special Counsel Robert Mueller’s office during the Russia investigation, and Goodman is a law professor at New York University who served as a counsel to the U.S. Defense Department under President Barack Obama. And as they see it, claiming executive privilege with the impeachment trial could backfire on Trump and his White House allies.
“Those advising the president would be wise to think hard before taking the actual step of asserting executive privilege to block the testimony of John Bolton or others,” Goodman and Weissmann warn. Such an assertion, they explain, “could cause a federal court” or Chief Justice John Roberts to “make the determination that the president committed a crime.”
According to Goodman and Weissmann, “As a threshold question, the judge will most probably look to whether an exception to executive privilege applies. The court could find that the privilege does not apply, for example, in those instances where the privilege has been waived by the president or his agents having spoken about the contents of the conversation. But there is another threshold issue: if the proposed testimony involves evidence of criminal activity.”
In their article, Goodman and Weissmann don’t discuss the likely verdict of Trump’s impeachment trial: acquittal on both of the articles of impeachment he has been indicted for (abuse of power and obstruction of Congress). Even if Bolton does testify and his testimony is damning, most Senate Republicans are so terrified of offending Trump and his MAGA base that they will almost certainly vote to acquit him. So, trying to keep Bolton from testifying by claiming executive privilege would probably be a waste of time and energy for the Trump White House. And according to Goodman and Weissmann, it would also be a risky move legally.
“In short,” Goodman and Weissmann write, “there’s a legal buzzsaw that would await the White House in asserting a claim of executive privilege, as it would open the door to a judge finding that the crime fraud exception applies.