Democrats fighting Trump for impeachment witnesses may have to ask the Supreme Court
President Donald Trump’s legal team is debating whether to assert executive privilege over all communications on Ukraine policy between the president and the four witnesses sought by Democrats in his impeachment trial, which could lead to a challenge at the Supreme Court.
Asserting executive privilege to block witnesses from testifying at the Senate trial now underway could further narrow the path for Democrats seeking to hear testimony from administration officials.
Republicans, Democrats and the White House all agree it also could plunge the impeachment proceedings into uncharted territory with little guarantee of how the Supreme Court would react and what impact it would have on the trial.
“We’ve never gone through that before,” said Sen. Dick Durbin of Illinois, the chamber’s second most senior Democrat on what would happen if a subpoenaed witness was blocked from testifying at the Senate trial.
Democrats remain singularly focused on securing the four Senate Republican votes necessary to subpoena witnesses in the first place. That vote is expected to take place in the coming days, following opening arguments and questions from senators.
But Democrats are not guaranteed to hear from witnesses even if they win the vote on subpoenas, since a White House assertion of executive privilege would pave the way for legal wrangling to compel the testimony.
One administration witness sought by Democrats is John Bolton, Trump’s former national security advisor, who in November expressed interest in providing potentially explosive testimony on the president’s efforts to pressure Kyiv to open investigations into a domestic political rival.
Given that this is only the third Senate impeachment trial in history, no one knows whether the Supreme Court would hear an emergency case over executive privilege should the president invoke it over Bolton, or any other witness. This has all sides preparing for the unexpected.
“None of us really knows 100 percent,” one senior administration official told McClatchy.
Presidential executive privilege is intended to protect frank communication with advisers that might otherwise be hampered if it became public. The president and his attorneys have already acknowledged plans to assert this privilege over Trump’s conversations with Bolton.
But Trump’s legal team faces a strategic dilemma over whether to assert the same privilege over similar communications with the three other witnesses requested by Democrats — Mick Mulvaney, the president’s acting chief of staff; Michael Duffey, associate director for national security at the Office of Management and Budget; and Robert Blair, an adviser to Mulvaney.
Declaring Trump’s conversations with Bolton on Ukraine as protected, while declining to do the same for other witnesses, could raise questions about the legitimacy of Trump’s executive privilege claims in an eventual court case.
“These are very difficult decisions for the president and his legal team to make, and we are not at a decision point yet,” said a second senior administration official. “There could be parts of what the witnesses know that get to the bottom of what happened that the president will actually want them to testify to under oath.”
Asserting executive privilege could also result in political blowback. According to recent polling, approximately 71% of Americans believe that Trump should allow senior officials to testify.
Ultimately, the Trump administration believes its position on executive privilege is firmly rooted in 50 years of precedent — an argument made by Patrick Philbin, deputy counsel to the president, on the floor of the Senate on Tuesday.
Congress last challenged that presidential power in the context of an impeachment during the Nixon era, when there was no impeachment trial. In the Nixon case, the court ruled that the president’s ability to keep communications private was not absolute.
“It’s neither here nor there, because once you start litigating these things, it will take months and months. It’ll go all the way to the Supreme Court,” the second administration official said. “And then what happens — does [Chief Justice John] Roberts pop back across the street and judge the case? He’d have to recuse.”
In anticipation that Trump could broadly assert executive privilege, many Democrats have described Roberts, who is presiding over the Senate trial, as their “only hope” to hear from witnesses.
Senate Republicans told McClatchy on Tuesday they had no reason to doubt that the White House would assert executive privilege, but were likewise unable to articulate what would happen next and how long the matter would take to resolve itself.
“Well I think we would generally assume that the White House would assert privilege and that it would be complicated,” said Sen. Roy Blunt, R-Mo., a member of Senate GOP leadership. “And I think the court is the likely place for that to be determined.”
Fellow Missouri Republican, Sen. Josh Hawley, the state’s former attorney general, said, “there would probably be multiple levels” to a legal challenge. “We’d have to go to a trial court, and they’d probably take an appeal, the Supreme Court might have to weigh in.”
Senate Democrats on Tuesday also indicated they didn’t know what their response would be — or if they would turn to the Supreme Court to render a verdict.
“I can’t predict what litigation path will be followed,” said Sen. Richard Blumenthal, D-Conn., a former state attorney general, when asked whether he thinks the Supreme Court would hear the case. “My hope is the president won’t assert executive privilege frivolously, and it would be frivolous.”
One Democratic source told McClatchy that Senate Democrats see a pathway to a political win even if the White House can successfully block the witnesses, because vulnerable Senate Republicans would be forced to say whether they agreed with the administration’s dramatic action.
If Republican senators say they support the use of executive privilege, Democrats could pummel them as complicit in a cover-up. If they say they oppose the assertion of executive privilege, it would put them at odds with the pro-Trump voters they can’t afford to alienate in upcoming elections.
A congressional Democratic source familiar with the impeachment process told McClatchy that Trump’s assertion of executive privilege could trigger a constitutional crisis. that would itself have political ramifications for the GOP.
“It would be ill-advised for someone to defy a subpoena passed by a bipartisan majority of senators and signed by the Chief Justice of the United States,” said the source.
Sen. Mitt Romney, R-Utah, said Tuesday he still wants to hear from Bolton and potentially others, but declined to characterize how he would respond to an assertion of executive privilege, saying only, “We’ll cross that bridge when we come to it.”
Sen. Lindsey Graham, R-S.C., the chairman of the Senate Judiciary Committee and a staunch Trump ally, predicted in a recent Fox News interview that Republicans would vote on the Senate floor to uphold the assertion of executive privilege without consternation.
“You are not going to find one Republican senator to deny President Trump the right to invoke executive privilege,” he said.
This story was originally published January 22, 2020 at 5:00 AM with the headline "Democrats fighting Trump for impeachment witnesses may have to ask the Supreme Court."
