It made me laugh while watching this to see how committed he was to selling the point about executive privilege. It’s not for my benefit that Bolton’s testimony must be blocked, he insists, it’s to preserve the legitimacy of executive privilege claims by future presidents. A fine, principled claim.
…and poles apart from his usual perspective, which is to maximize his personal interest at all times. That’s what got him impeached in the first place, in fact, the suspicion that he used military aid to shake down the Ukrainian government to make trouble for his likely election opponent. If we could guarantee for him that his successors would still be able to invoke executive privilege going forward if Bolton testified, undoubtedly he’d still want Bolton not to testify.
Anyway. Normally this is where I’d point to some precedent as a clue for how the Bolton saga will play out but I don’t think there’s any historical guidance for a situation in which a top advisor is willing to testify at an impeachment trial and the White House is hellbent on hushing him up.
President Trump on John Bolton saying he would testify at an impeachment trial: "I always got along with him. He didn't get along with some of our people, but that's really going to be up to the Senate. … We have to protect presidential privilege" https://t.co/cGTlkybR0c pic.twitter.com/DsLyWtrUH7
— CNN Politics (@CNNPolitics) January 9, 2020
Trump wants “absolute immunity” for his top advisors, i.e. they don’t even need to show up to a congressional hearing when subpoenaed, but that’s an extreme assertion of privilege. Normally the advisor would show up and privilege would be claimed on a question-by-question basis, with Bolton barred from answering any questions regarding things Trump has said to him in confidence relating to national security. Any communications outside that narrow band might (emphasis: might) be admitted. Bolton’s statement of a few days ago made it sound like he’ll show if the Senate calls him, so “absolute immunity” won’t cut it for Trump here. Presumably what he says in the clip about asserting privilege means he’s going to have his lawyers object question-by-question if Bolton testifies.
Which raises a thorny question: Who’ll rule on those objections? John Roberts? Will the Senate vote on whether to sustain or overrule the objection to each question when there could be dozens or hundreds? What would Susan Collins and Cory Gardner do in that situation, wanting to show voters in their home states that they’re being diligent about giving the evidence a fair hearing?
I think Trump’s answer here is aimed at providing them with a reason not to call Bolton in the first place. Right now, with Bolton telling the world he’s ready to testify, Collins and Gardner are in a jam. They don’t want to hear from him in case he has something incriminating to say about Trump but they’re short on excuses for not calling him at the moment. The best they can do is follow Marco Rubio’s lead and claim that the Senate is stuck rendering its verdict based on the evidence gathered by the House, which of course didn’t include Bolton’s testimony. But that’s just not true: The trial really is a trial, not an appellate hearing at which the judges are bound by the factual record produced by the lower court. The point of a trial is to gather facts and now here comes Bolton offering facts. They have to call him if they want to make any pretense that they’re trying to get to the truth of what happened with Ukraine.
Unless, that is, Trump has made clear in advance that he’ll fight Bolton’s testimony doggedly. In that case there could be a delay while the president and the Senate battle in court over whether Bolton can be compelled to testify. Or, if Bolton averts that by deciding to show up without a court order, there could be a long delay during the trial itself as the Senate is forced to rule on the many objections made by Trump’s lawyers to questions asked of him on executive privilege grounds. Could Collins and Gardner get away with telling their constituents that it’s not worth calling Bolton in the first place because the president intends to be a pain in the ass about allowing his testimony? I don’t know if that excuse will sell, but it does have the virtue of offloading (some) responsibility for failing to call Bolton onto Trump.
Speaking of the trial, House Republicans are leaning on POTUS to let Jim Jordan, Doug Collins, and John Ratcliffe join his defense team. Trump loves the idea, Senate Republicans hate it. I have to say, I think Trump’s instincts are correct in this case:
But Senate Majority Leader Mitch McConnell (R-Ky.) and his fellow GOP senators have expressed concerns to Trump that a House-led defense could offend moderates, including Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). Trump, they argue, has already won the backing of the GOP base, so he and his team need to focus on ensuring Republican unity on an acquittal.
McConnell, who discussed the trial with the president at the White House on Wednesday, has been advising Trump and his legal team not to think of the trial as a “made-for-TV-type House setting,” said one individual familiar with the leader’s thinking, “but rather one where ultimately your audience is senators in the middle on both sides, who are actually listening to the arguments here.”…
“One thing I’m not eager to do is re-create the circuslike atmosphere of the House — that’s not what we’re going to do here, if we can avoid it,” said Sen. John Cornyn (R-Tex.), a McConnell ally. “So I think it seems obvious to me that if the president picks a team that does not include House members, that we’d be more likely to have the dignified process that the Constitution calls for.”
There are two different rationales there, one the idea that the Senate is more “dignified” than the House (sort of, but less so than it used to be) and the other that histrionics from the likes of Jordan might alienate moderates like Susan Collins, or at the very least make her eventual acquittal vote more irritating to center-left voters back home. I don’t buy it. The fact is that the trial is “made for TV” this year. Playing it safe and by the book would have been wise of Trump if he faced a genuine risk of removal, but since the verdict is assured in this case he might as well turn the trial into a pageant. Would a swing voter in Maine who’s largely unfamiliar with the Ukraine matter and is tuning into the trial to see what it’s all about be more or less likely to view the charges against Trump sympathetically if Jordan and Ratcliffe are on TV visibly enraged, doing their “this whole damned system is out of order” shtick? I think that could work for Trump. What McConnell’s worried about, I assume, is Jordan et al. wanting to call Hunter Biden or the whistleblower to the stand and send the proceedings off on a tangent. Trump could make a deal with him — in return for House bombthrowers being added to the defense team to grandstand, he’ll agree not to try to call any defense witnesses. That’s the price of letting the Senate turn a bit more “circus-like” for the next few weeks.