Executive privilege fight

How the fight over Trump's executive privilege could play out

A key argument by the president’s impeachment defenders is that calling current and former officials would create a legal quagmire.

By JOSH GERSTEIN

As President Donald Trump’s impeachment trial enters its second week, many of the players seem both emotionally drained and on edge.

Despite some public waffling from the president himself on the question of calling witnesses to appear during the Senate process, Trump’s lawyers and his Republican allies appear eager to exploit the building sense of weariness to head off any new testimony that could upend the current state of the evidence.

With several GOP senators publicly on the fence about allowing witness testimony, one key argument the president’s defenders are wielding is that calling current and former officials would create a legal quagmire over executive privilege — the protection for the president’s ability to receive confidential advice and to trade views freely with his advisers.

Trump’s backers hope the prospect of a protracted delay and litigation that might wind its way to the Supreme Court will contribute to all or nearly all Republican senators deciding that witness testimony just isn’t worth the hassle. Democrats need at least four GOP colleagues to allow the potential fireworks that new witnesses could bring to the third presidential impeachment trial in U.S. history.

Here’s POLITICO’s look at how both sides are framing the potential battle over executive privilege and how it might play out if the Senate gives the green light for fresh testimony:

How many witnesses could be caught up in a privilege fight?

So far, Senate Democrats have requested that four witnesses testify at Trump’s trial: acting Chief of Staff Mick Mulvaney, Mulvaney aide Robert Blair, former national security adviser John Bolton and Michael Duffey, an official at the Office of Management and Budget.

Testimony from all four might be subject to claims of executive privilege by the White House. Indeed, none of them complied when House committees sought to question them last year.

However, executive privilege claims are generally strongest when the witness has regular dealings with the president and is involved with providing advice, not simply carrying out the president’s orders. That could make the claims of privilege stronger for close Trump advisers like Mulvaney and Bolton and weaker for Duffey, who implemented a hold on aid to Ukraine.

Bolton, who was ousted by Trump last September, is perhaps the most important witness on the list and something of a wild card. House committees never actually subpoenaed him after he threatened to join a suit filed by one of his deputies seeking a ruling on the privilege issue. A judge later dismissed that suit as moot.

At the time, Bolton appeared to be saying that he would testify only if a judge ordered him to do so. But earlier this month the former Trump adviser shifted his stance and said he would appear and testify if subpoenaed in the Senate impeachment trial of his former boss.

A report in The New York Times on Sunday evening could make Bolton an even more compelling witness. The article said that the unpublished manuscript of a book by Bolton revealed that Trump told his former national security adviser in August that he wanted to continue withholding aid to Ukraine until the country carried out investigations into the president’s rivals.

Bolton‘s willingness to be a witness could be a crucial distinction from the others. If Trump wants to stop Bolton’s testimony, he may have to take legal action to halt it, while in the case of the other officials, the status quo suggests they will fight or ignore any Senate subpoena.

“Executive privilege cannot be used to prevent a witness who is willing to testify from appearing, and certainly not one who no longer works in government,” Rep. Zoe Lofgren (D-Calif.), one of the House impeachment managers, wrote on Twitter on Thursday. “It’s not a gag order. And witnesses testify on national security all the time. Bolton has a right to testify if he wants to.”

Some Bolton associates say they doubt he’d defy specific claims of executive privilege by the president.

“I know John Bolton and he’s a strong constitutionalist, so I don’t think he’d do that,” said David Rivkin, a former Justice Department official, while acknowledging that Bolton’s shift earlier this month was hard to interpret.

Democrats have also demanded documents that the White House could assert executive privilege over if the Senate subpoenaed them. Democratic senators could add to the list of potential witnesses they began demanding last month, but might refrain from doing so to avoid fueling claims that allowing any witnesses would bog the Senate down in an unwieldy mess.

Who would decide whether Trump’s privilege claims are valid?

If Trump’s lawyers object in the trial to any subpoena the Senate might issue, Chief Justice John Roberts will be the one to rule at the outset. Such a decision would be closely scrutinized, in part because Roberts and Trump have tangled publicly before about Trump’s blunt criticism of federal judges.

Whatever ruling Roberts issues would be subject to immediate appeal to the full Senate, where the vote might well be a close one, tracking any earlier vote to hear from witnesses in the first place.

Democrats seem hopeful that Roberts’ decisions would carry some weight.

“Whether or not there’s executive privilege related to a witness, he can rule right away,” Sen. Debbie Stabenow (D-Mich.) said on Fox News on Saturday.

Rep. Adam Schiff (D-Calif.), the lead impeachment manager and chairman of the House Intelligence Committee, told reporters on Friday: “Unlike in the House, where the president could play rope-a-dope in the courts for years, that is not an option for the president’s team here. We have a very capable justice sitting in that Senate chamber, empowered by the Senate rules to decide issues of evidence and privilege.”

Any of the witnesses or perhaps Trump himself could also try to take the dispute to court, filing a motion to quash the subpoenas in U.S. District Court in Washington.

A judge would probably take submissions from both sides before hearing arguments and issuing a ruling. That decision could be appealed to the D.C. Circuit Court of Appeals and even leap-frogged to the Supreme Court, if the justices agreed.

Taking the privilege issue to the courts before objecting in the Senate might be a good option if Trump’s lawyers want Roberts to rule on any disputes that reach the court. He might be reluctant to rule on challenging a decision he made as the presiding officer in the Senate.

Exactly how this would all unfold procedurally is uncertain.

“We are in new territory here with the issue of executive privilege coming up during the impeachment trial itself,” said Mark Rozell, an authority on executive privilege who is dean of the Schar School of Policy and Government at George Washington University. “There are no clear guideposts as to what must happen next.”

Some Republicans say the novelty and uncertainty of the situation is a very good reason not to call witnesses in the first place.

“I just think it’s best for the country to vote on the record established, because if you go down the witness road, you run into executive privilege in a way… that’s uncharted territory,” Sen. Lindsey Graham (R-S.C.), a close Trump ally, told reporters at the Capitol on Saturday. “No one’s ever been in the box we’re in before, and I really don’t want to turn the trial into a circus.”

How long would a court fight take?

Democrats say not terribly long, with any delay well worth it to hear from Bolton and the other senior officials who never spoke to the House. Republicans say trying to battle out an assertion of executive privilege could take months, prolonging a divisive national spectacle.

Schiff pleaded with senators on Friday to not let the predictions about the duration of a privilege fight dissuade them from calling witnesses.

“This is no parking ticket we are contesting, no shoplifting case we are prosecuting,” Schiff said. “How long is too long to have a fair trial?”

Schiff suggested that executive privilege was not a legitimate basis for entirely excusing a witness from testifying. He even joked awkwardly with senators that they should seize the rare opportunity to pass judgment on Roberts’ rulings, instead of the nation’s top jurist getting the last word on their work.

“When the chief justice decides where a narrow application of privilege ought to apply, you will still have the power to overrule him,” Schiff stressed. “How often do you get the chance to overrule a chief justice of the Supreme Court? You have to admit: It’s every legislator’s dream.”

Republicans have suggested that if a privilege fight heads to the courts, all bets are off and the trial could be suspended for a protracted delay.

One GOP senator, James Lankford of Oklahoma, has suggested that a fight over executive privilege could take as long as five months to resolve in the courts and is unnecessary, to boot. “We can answer the question that they’re asking us right now, without having to go through all that,” Lankford said.

One prominent, if dated, point of reference to predict how time-consuming a privilege-related legal fight might be is the half-century-old showdown over President Richard Nixon’s Oval Office audiotapes that eventually reached the Supreme Court.

The key chapter in that battle, involving a subpoena to use the tapes in a criminal trial, went from the district court to a Supreme Court decision in less than three and a half months. The high court’s consideration of the case — in an era of paper court filings — took 61 days from petition to final ruling, including a three-hour oral-argument session on July 8, 1974, during the court’s traditional summer recess.

This time around, it seems certain that taking an executive privilege fight to the courts would lead to at least a couple of weeks of delay, frustrating many Republican senators’ desire for a quick acquittal of the president before his scheduled State of the Union address on Feb. 4.

Has anything like this happened before? Who’d win in court?

Not really, but this is only the third presidential impeachment to result in a trial.

Other cases of executive privilege that have played out in the courts do provide some indication of how the courts might rule.

Presidents Richard Nixon and Bill Clinton made similar claims of executive privilege in the criminal investigations related to the impeachment investigations they faced. Neither got very far.

The best legal point Trump’s team may have is that when the Supreme Court unanimously ordered the handover of the Nixon tapes, the justices indicated they would give the president much greater deference if “military or diplomatic secrets” were involved.

That language from the high court might explain why some working on Trump’s defense have told reporters that a court bid to block Bolton’s testimony could involve claims that part of it is classified.

Another legal talking point for the president’s lawyers and the Justice Department is a 1974 D.C. Circuit ruling in Watergate that denied a Senate committee’s effort to enforce a subpoena for Nixon’s tapes.

That decision said the Senate panel could prevail only if the information was “demonstrably critical” to the committee’s work, but the judges also warned that executive privilege could not be used to cover up crimes.

Clinton claimed executive privilege in the face of a couple of independent counsel investigations. Judges acknowledged the privilege, but turned around and said it had to yield because of the importance and urgency of a criminal probe. Democrats contend that a Senate trial of the president is at least as important as a run-of-the-mill criminal case and, therefore, that any privilege claim Trump actually makes would ultimately fail in court.

Democrats also have a key Supreme Court case that could hamper any bid by Trump to use the courts to second-guess Senate rulings on subpoenas or matters of privilege: a 1993 ruling in a case involving a federal judge that gives the Senate broad latitude to devise its own rules and procedures on impeachment.

What the courts do in the coming days could also affect the balance of legal precedents and arguments available to both sides. Two of the House’s unfulfilled demands for information — the subpoena for former White House counsel Don McGahn’s testimony and the request for grand jury secrets in special counsel Robert Mueller’s report — are the subject of cases pending at the D.C. Circuit, which could rule any day.

Indeed, as recently as Thursday, House lawyers implored the panels to rule “expeditiously” because of the ongoing impeachment trial, and called McGahn’s testimony “more urgent than ever.”

Are the Justice Department and Trump out of sync on the issue of the courts’ role in privilege fights?

When presidents assert executive privilege in court, their case is normally pressed by Justice Department attorneys. In the Trump administration’s ongoing court fight against a House effort to force testimony from McGahn related to Trump’s response to Mueller’s investigation, Trump’s interests have been represented by lawyers from the department’s Civil Division and the solicitor general’s office.

In recent days, however, a tension has emerged between the Justice Department’s stated positions in impeachment-related court cases and the rhetoric used by Trump’s impeachment trial defense team, as well as the president himself.

The department’s argument in court has been that judges should essentially butt out of fights between Congress and the White House over access to documents and witnesses. Such disputes should be battled out in the political sphere, department lawyers argued, as they have for years.

However, as the impeachment trial got underway, Trump and his attorneys argued that the House should have pursued litigation to enforce all its subpoenas, rather than waiting to seek some witnesses’ testimony through the Senate trial.

“We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude,” Sekulow said on the Senate floor last week. “That is why we have the courts. That is why we have a federal judiciary.”

Democrats were quick to highlight the apparent contradiction, both in the Senate and in court.

“Other lawyers — maybe not the ones at this table, but other lawyers for the president — are in the courts saying the exact opposite of what they’re telling you today,” Schiff said. “They’re saying, ‘You cannot enforce congressional subpoenas. You can’t do it.’”

House Counsel Doug Letter also fired off a letter to the D.C. Circuit appeals court saying that Trump had undermined the Justice Department’s arguments and had essentially conceded that courts should resolve subpoena fights between the White House and Congress. “The Executive Branch cannot have it both ways,” Letter said.

The Justice Department insisted to the court that there’s no contradiction, with one department official who commented on the condition of anonymity calling it “an entirely contrived conflict.” The department accused the House of trying to have it both ways by rushing to court and then using Trump’s refusal to concede the McGahn suit as grounds for impeaching the president.

So, who’d represent Trump in such a privilege battle?

If Trump wants to go to court in a bid to use executive privilege to block testimony by Bolton or others, the president may not want to use Justice Department lawyers for that, given their earlier arguments that the political branches need to settle such fights on their own.

Such a handoff took place when the Clinton White House wanted to press executive privilege claims in independent counsel investigations. Sensing a possible conflict, the Justice Department agreed to pay an outside lawyer, Neil Eggleston, to argue for the White House in court.

“I was a DOJ employee for this purpose, not a private lawyer. My client was the Office of the President,” recalled Eggleston, who later served as White House counsel to President Barack Obama.

Eggleston said that only lawyers officially appointed by the Justice Department should be allowed to advance claims of executive privilege and that they should be left to the Senate during an impeachment trial, not the courts.

“If lawyers file in any court … the courts should dismiss the case immediately,” Eggleston told POLITICO. “The Constitution makes clear that the impeachment processes are solely within the purview of the Senate.”

Is it all a bluff?

Democrats have also noted during their floor arguments that despite a string of combative letters and defiant rhetoric from Trump, he never actually asserted executive privilege in response to the House subpoenas. At the Senate trial, the president’s lawyer Patrick Philbin called the claim “technically true but misleading,” because the White House had other legal grounds — backed up by the Justice Department — for instructing witnesses not to comply.

Indeed, Trump is still resisting testimony by McGahn and fighting efforts by House and other investigators to acquire documents in a variety of probes.

Nevertheless, Democrats and some legal experts think the lack of a formal privilege invocation by Trump may indicate a reluctance or even ambivalence on his part to being seen as directly and personally blocking testimony — particularly in the extraordinarily high-profile context of his own impeachment trial.

Sen. Chuck Schumer (D-N.Y.), the minority leader, also hinted on Friday that the talk of invoking executive privilege might be a bluff, or something Trump wouldn’t follow through on if the Senate actually demanded to hear from witnesses.

“There’s a simple answer, when our Republican friends claim it would take too long …. go tell the president not to invoke executive privilege. He’s the one delaying it, not us,” Schumer told reporters. “If this is as serious as it should be to them, they’ll go to the president and say we don’t want executive privilege invoked. If the president believes he did nothing wrong, that everything’s perfect, he should have nothing to fear from these witnesses and documents.”

Of course, what Trump would do will remain an academic question unless four Republicans join Democrats to call for witness testimony.

“The threat of the use of executive privilege may be a ploy to try to keep all GOP senators in line,” added Rozell, the George Washington University dean.