(Jan. 24). If a majority of the U.S. Senate wants to hear testimony from former national security adviser John Bolton, then the only way that it can be denied is if the Senate emasculates itself.

Bolton has said he is a willing witness if under subpoena. So there is little that President Trump can do to stop him. What is the president going to do — order Bolton’s arrest? No court in the land would uphold such an arrest.

It is spurious to say that the Senate is in the same position the House was in when it declined to subpoena Bolton because it feared a long court battle. Bolton, at the time, was not a willing witness. As such, he had potentially justiciable rights independent from those of the president himself. Those rights, in conjunction with an executive privilege claim, would take far longer to adjudicate than a privilege claim alone.

Plus, the House arguably does not enjoy the same presumption of plenary power while seeking an impeachment that the Senate does in trying an already impeached official. As Chief Justice William Rehnquist ruled during the Senate trial of President Bill Clinton, “The Senate is not simply a jury — it is court in this case.” As such, it has powers to pierce any “executive privilege” claims that are directly analogous to those applicable when a unanimous Supreme Court ruled in United States v. Nixon that President Richard Nixon must turn over his White House audiotapes in a court proceeding. Since then, courts have repeatedly narrowed but never expanded the scope of executive privilege.

The Senate’s constitutionally specified “sole power to try all impeachments” makes its own rules presumptively valid. Standing Senate rules on impeachment, in place since 1986 and still controlling unless overruled by a majority of the Senate itself, say that “the Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writes, precepts and judgments, and to punish in a summary way” all violations thereof….

[The full column is here.]


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