WaPo: Trump's legal team plan to use executive-privilege claims on trial witnesses

The White House has two big strategic questions on its plate as the Senate trial on Donald Trump’s impeachment nears, the Washington Post writes in its curtain-raiser today. How does its legal team deal with witness demands from the Senate in the second phase of the trial, assuming that it goes that far? And how does everyone else in the West Wing deal with Trump himself?

The Post takes the tougher question first, although the two are inevitably intertwined:

White House lawyers are trying to engineer the fastest impeachment trial in American history, aiming to have President Trump acquitted by the Senate without witnesses and after just a few days of proceedings, according to senior administration officials.

Trump’s desire for a short trial has solidified over the past few weeks, as House Speaker Nancy Pelosi (D-Calif.) delayed transmitting two articles of impeachment to the Senate because of concerns about how the trial would be structured. The White House, which previously supported a more expansive trial in the GOP-led Senate, has now accepted the idea that senators should make quick work of acquitting Trump. …

White House aides are also gaming out how to manage Trump during the trial, which they expect him to watch and possibly tweet about while it is underway, as he did during the House impeachment hearings, according to the officials. Trump allies plan to have several surrogates on television defending the president during the trial. Republican House members, many of whom jockeyed for official roles on the defense team for the Senate trial, will instead fan out across television networks to ensure that the president’s message gets out and that Trump feels he is receiving a robust defense, the officials said.

What’s the best way to limit the damage Trump might do to his own standing as the Senate trial unfolds? By making the trial as short as possible — or by making it potentially so long that the Senate decides to pack it in with a dismissal. Even Trump has come around on that point, according to Lindsey Graham, who sold him on the idea of a short trial rather than an all-out fight. “He wants it done sooner rather than later,” the Post quotes Graham.

To that end, Pat Cipollone plans to make robust claims of executive privilege if and when the Senate invites or subpoena key White House personnel, including former national security adviser John Bolton:

A senior administration official briefing reporters said that House Democrats’ case lacked evidence of wrongdoing by Trump, but the official refused to address new documentary evidence that Democrats say further implicates the president.

The official indicated that Trump is likely block efforts by Democrats to further build their case through new witnesses, including former national security adviser John Bolton. Allowing testimony from a former presidential aide about his discussions with Trump on foreign policy would be “extraordinary,” said the official, who added that he did not think the Senate should hear from any witnesses. Another official said the White House was prepared to exert executive privilege if the Senate subpoenas Bolton, who has said he is willing to testify under subpoena about Trump’s dealings with Ukraine.

An executive privilege claim would be fairly strong relating to Bolton, perhaps at its strongest among the potential witnesses that Democrats want called. A claim on Mick Mulvaney’s testimony might be as strong. Bolton and Mulvaney work or worked in entirely advisory capacities to the president within the White House itself, where there is no shared authority with the legislature (as opposed to the State Department, for instance, or other Cabinet agencies).

Courts have at least paid respect to the principle of executive privilege as necessary for the proper operation of the presidency, but within limits. One key limit is that a president cannot use executive privilege to shield conversations directly related to the commission of crimes. In this case, however, the House has not identified any statutory crimes, unlike in US v Nixon, which began with a burglary and later came to include a number of statutory crimes. Or for that matter the impeachment of Bill Clinton, which involved admitted perjury and obstruction of justice. The House and Senate are therefore not entitled to go on fishing expeditions by subpoenaing presidential advisers, not even if the witnesses bring their own fishing tackle, as Bolton seemed to offer.

A court would tread carefully here on negating an executive privilege claim in this instance, which means it would take time to litigate. This would not be a slam dunk in either direction, and courts might reach different conclusions on each witness, depending on their position within the administration. The longer that fight drags on, the more paralyzed the Senate becomes in the trial. The House decided not to bother arguing this in court before leaping to its conclusions on impeachment; the White House has to hope that the Senate will do the same, faced with the same legitimate right that the president has to litigate on privilege, only that they will leap in the opposite direction.

This means that the trial will either last a couple of weeks, or it might last until summer recess. How many Senate Democrats really want this litigating through campaign season? For that matter, how many House Democrats want that, especially those in districts that are likely to vote for Trump again regardless of impeachment? Trump and his team might be able to afford a game of chicken over impeachment longer, since he’s free to campaign all the while.

Besides, as long as these lines continue to remain flat, the worse it is for Democrats:

Not even the more recent revelations about e-mails and Lev Parnas have impacted the public’s perception of impeachment and removal. Do Democrats — or moderate Senate Republicans — really want to drag this out for a few more months just for pig-in-a-poke testimony from Bolton that likely won’t change this at all anyway? Pat Cipollone is betting no, and he’s probably right.

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