By Barbara McQuade / Special To The Washington Post
President Trump refers to himself as a counterpuncher. This time, he might have punched too hard.
In a series of tweets early Monday, just after midnight, Trump responded to weekend reporting about a forthcoming book by his former national security adviser John Bolton. The book reportedly reveals that Trump tied military aid for Ukraine to his demands for investigations into his political rivals. Trump’s tweets directly dispute the truth of these claims. He may have been hoping to push wavering Senate Republicans away from agreeing to call Bolton to testify in the impeachment trial. But in the process, Trump probably waived any executive privilege that he could have claimed to keep Bolton quiet if that gambit fails.
On Saturday, Trump’s lawyers argued that “not a single witness testified that the president himself said that there was any connection between any investigations and security assistance, a presidential meeting, or anything else.” That statement was literally true, but it now appears to have been deeply misleading. Because the next day, The New York Times reported that Bolton’s book says Trump told Bolton in August that he wanted to continue to hold almost $400 million in military funding until the Ukrainian government agreed to announce investigations into Democrats, including presidential candidate Joe Biden and his son Hunter Biden. The reports renewed demands for Bolton’s testimony at the Senate impeachment trial.
In that early Monday series, Trump tweeted: “I NEVER told John Bolton that the aid to Ukraine was tied to investigations into Democrats, including the Bidens. In fact, he never complained about this at the time of his very public termination. If John Bolton said this, it was only to sell a book.”
So far, Trump appears determined to maintain his strategy of convincing Republicans that there is no need to call any witnesses, even after the reports about Bolton’s book. When they know that speaking out against Trump’s interests could result in open hostility from the president and his loyal base, GOP senators are not likely to cross the president.
But if Trump fails in persuading the Senate that witnesses are unnecessary, then his best hope for preventing Bolton from providing damaging testimony is by asserting executive privilege. Trump blocked Bolton and other witnesses, such as acting White House chief of staff Mick Mulvaney, from testifying before the House during the impeachment inquiry by asserting a very broad form of privilege that White House Counsel Pat Cipollone termed “absolute immunity” to prevent them from appearing altogether. After the White House made that claim, the House did not sue to force Bolton or Mulvaney to testify, so we don’t know how courts would rule on the question of executive privilege in this case.
Executive privilege is not mentioned in the Constitution, but the Supreme Court gradually recognized the doctrine to allow presidents to prevent the disclosure of certain sensitive information, such as communications with close aides. The purpose is to promote frank and candid discussions between the president and his closest advisers without the chilling effect that could occur if they feared public disclosure of their conversations. In United States v. Nixon, the court ordered the disclosure of President Richard Nixon’s Watergate tape recordings, finding that the privilege is qualified and must yield when outweighed by a compelling need, such as a criminal investigation. While an impeachment is not a criminal case, one could argue that disclosure is a compelling need when the Senate is considering whether the president has engaged in “high crimes or misdemeanors.”
This question, however, is far from settled. Because inter-branch disputes are generally resolved through negotiations to avoid a constitutional crisis, there is little case law defining the contours of the privilege. So it’s unclear whether Trump would succeed in asserting executive privilege in a Senate impeachment trial. Presumably, if senators subpoenaed a witness, such as Bolton, and Trump invoked privilege, the Senate could hear a motion to compel the testimony. Chief Justice John Roberts, as the presiding officer, could issue an order to make the witness appear. It is unclear whether Trump could file a separate lawsuit in a federal court to quash the subpoena. It seems possible, if not likely, that a court would dismiss such a lawsuit as a non-justiciable political question that must be decided by the Senate, to which the Constitution gives with the “sole” power to try cases of impeachment. At the very least, Trump could delay proceedings in the Senate by filing a lawsuit challenging the subpoena and appealing it to the Supreme Court (where Roberts would find himself in an odd position, having already been involved in the case in the Senate trial).
But now the executive privilege argument is no longer available. Trump’s tweets directly denying the substance of Bolton’s reported allegations waive any privilege that might have protected them from public disclosure. Privilege is meant to keep a president’s secrets confidential. If the president reveals those secrets or publicly discusses the conversations himself, there is no longer any need to protect them from disclosure.
Now that Trump has accused Bolton of lying about their communications, the time has come to put Bolton under oath and see what he has to say.
Barbara McQuade is a law professor at the University of Michigan’s law school and a former U.S. attorney for the Eastern District of Michigan.
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