CNN: White House has served notice on Bolton, publisher; Update: Top Secret information, not privilege?

Update: Not only is this not a “threat,” it’s actually a rather polite notice that Bolton’s book contains “classified information… at the TOP SECRET level”:

Note too that this doesn’t come from the White House per se, but the NSC. There might still be a claim on executive privilege coming later, but this isn’t it.

Original post follows …

CNN calls this a “threat,” but it’s not like Donald Trump sent Rudy Giuliani in person to deliver it. According to their sources, the White House sent a letter to both John Bolton and Simon & Schuster demanding that the publication of his memoirs cease. It is the first step toward asserting executive privilege in regard to conversations that took place between the president and his then-national security adviser, a dispute that one way or another will end up in court.

It’s also a signal to Senate Republicans that it’s time to fish or cut bait:

The White House has issued a formal threat to former national security adviser John Bolton to keep him from publishing his book, “The Room Where It Happened: A White House Memoir,” sources familiar with the matter tell CNN.

The White House had no comment. Neither Bolton nor a spokesman for the publisher, Simon & Schuster, responded to a request for comment. …

Bolton has said he would be willing to testify in the Senate trial if subpoenaed. Trump has suggested that he might attempt to assert executive privilege and block Bolton’s testimony, though legal experts say the President’s tweets describing his conversations with Bolton about Ukraine might undermine any such assertion.

Note well that a threat to stop publication over executive privilege alone is likely to fail, and fail big-league.  Trump could argue for an injunction on national-security grounds, but he’d have to (a) prove that Bolton is revealing truly sensitive material that would adversely impact national security, and (b) was unwilling to remove or modify it to suit those purposes. Otherwise, courts take a very dim view of prior restraints on speech, especially political speech, and especially especially that political speech which serves to make elected officials accountable for their actions.

The book will come out, one way or the other, and probably sooner rather than later. Even a nat-sec violation will get resolved quickly by Simon & Schuster in order to get sales started on what is certain to be a big money-maker for their company. An executive privilege claim at this point and a “threat” to pursue legal action to halt publication serves mainly to draw a marker on Congress’ action regarding Bolton’s testimony. After all, executive privilege applies in the executive’s dealings with the legislative branch, not so much public speech. And it also signals that any testimony from Bolton could be weeks out, if not months, while courts settle the matter.

Even then, executive privilege isn’t a bulletproof claim, as the Supreme Court ruled in US v Nixon. Presidents cannot use it as a shield to hide evidence of criminal behavior, the court ruled while recognizing the privilege principle as valid generally. The problem in this case is that the House hasn’t asserted any specific crimes, which makes this claim’s prospects somewhat murky. This might fall into the

Allahpundit just linked to Andrew McCarthy’s lengthy analysis of the Q&A session that starts today, but let’s look again at McCarthy’s read on a privilege claim. He’s also not confident it will survive after Trump’s public comments on his conversations with Bolton:

As noted above, it is unlikely that anyone wants to see the trial extended when the outcome is not in doubt. And it is certainly important to protect executive privilege – as Democrats would concede if a Democrat were in the White House.

On the other hand, the president has chosen (foolishly in my view) to make the quid pro quo question an issue in the trial; and he and his surrogates have chosen (foolishly in my view) to mount public attacks on Bolton’s credibility. Furthermore, legal confidentiality privileges are shields, not swords. A litigant is not supposed to be able to inject an issue of fact into a case (e.g., there was no quid pro quo) and then deny the factfinder access to probative evidence on that same issue. If you want to rely on your privilege, you need to steer clear of the issue.

That’s a very valid concern. Somewhat less valid is the argument from Neil Katyal and Joshua Geltzer, who last argued that Chief Justice John Roberts had plenary authority to issue subpoenas without a Senate vote. Today, they acknowledge that the Senate actually makes that call, but now they say the Senate can determine the use and scope of executive privilege on their own just because they’re conducting an impeachment trial:

If Trump asserts executive privilege to keep Bolton from testifying, his claim can be resolved immediately — by the chief justice of the United States, whom the Constitution makes the presiding officer in a president’s impeachment trial. The Supreme Court has made clear that internal management of an impeachment trial is a matter for the Senate alone, and no second-guessing by federal courts is permitted.

An assertion of executive privilege by a witness like Bolton would happen in the middle of the ongoing impeachment trial in the Senate. That’s no ordinary assertion of privilege in the context of, say, civil litigation or congressional testimony. And it’s a far cry from the assertion of immunity (and, potentially down the road, privilege) made by the Trump administration in ordering current and former officials like former White House counsel Donald McGahn to ignore subpoenas from the House during its impeachment investigation. Those subpoenas may relate to the impeachment inquiry into Trump, but they’re still subpoenas — and they can be enforced like any other subpoena in federal court, just as a federal judge ruled in McGahn’s case in November.

Contrast all of that with a potential assertion of executive privilege to stop Bolton within the ongoing impeachment trial. That assertion of privilege requires a ruling in its proper context — which is that of an impeachment trial in particular, presided over by Chief Justice John G. Roberts Jr. That’s why the long-standing Senate rules for impeachment make clear that “the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions,” subject to being overruled by a majority of senators. A ruling on privilege is an evidentiary question, and so the chief justice can and should rule on it, right then and there, or submit it without ruling to a Senate majority, as the same rule also permits. Either way, that’s where and how the ruling on privilege happens within an impeachment trial: on the floor of the Senate.

That’s also where the matter ends.

To quote the pair, this is just poppycock. Executive privilege flows from the co-equal status of the Article II branch with the Article I branch of the Constitution. It is not a grant from the legislature to the executive; they cannot bar it or limit it on their own because it doesn’t originate from their own constitutional authority. The president has the right to seek redress from the Article III branch to resolve the conflict of constitutional authorities. And we know that because that’s precisely what happened in US v Nixon, during the impeachment process which is the sole reserve of the House. The court did not rule that Nixon lacked standing to challenge subpoenas even when they came from within the executive branch, as the Special Prosecutor was at that time, but that his privilege didn’t extend far enough to block them under any circumstances:

2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 692-697.

(a) The mere assertion of an “intra-branch dispute,” without more, does not defeat federal jurisdiction. United States v. ICC, 337 U.S. 426. P. 693.

(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure and authority to represent the United States, and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260. Pp. 694-696.

(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President’s assertion of privilege in opposition thereto, present issues “of a type which are traditionally justiciable,” United States v. ICC, supra, at 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696-697.

3. From this Court’s examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court’s denial of the motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 697-702.

4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of[p685] Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707. …

5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707-713.

In fact, the court even addressed the idea that Congress can act judicially on privilege disputes explicitly. The court wrote that the judiciary must be the judge of such matters:

Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed.[p705] 1938). We therefore reaffirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison, supra at 177.

Despite the context of impeachment in US v Nixon, the Supreme Court never even mentions the notion that the judiciary would have no say in such proceedings. Indeed, the entire thrust of their argument is that neither of the two electoral branches can resolve such a dispute, and that it is fully within the judiciary’s authority.

Still, it seems very uncertain whether Trump could sustain a privilege claim for long. The federal courts would expedite these reviews very quickly, especially in the context of public speech rather than an interbranch dispute. Since Trump himself has talked publicly about his conversations (or lack thereof) with Bolton on this matter, those decisions likely won’t go in the White House’s favor even if the Warren Berger court ruled that the privilege reaches a zenith on “foreign policy considerations.” It’s a dead end, but still one of enough length to suffice for the Senate trial.

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